If you are a media lawyer or a business that deals with Internet content issues, then you have been following — or should have been following — the twists and turns of the Viacom v. YouTube litigation. The Second Circuit finally issued its ruling last month on the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). But what does the decision mean for others on the Internet?
In case you are one of the few people with an interest in these issues who is not familiar with the background of this case, Viacom sued YouTube and Google in March 2007, seeking more than $1 billion in damages for copyright infringements of Viacom programs like South Park committed by YouTube users. The primary issue in the case is whether the DMCA safe harbors designed to protect commercial Web-hosting services that follow certain procedures apply to YouTube. Viacom advanced a number of arguments that would have stripped the DMCA safe harbor of its power, but on June 23, 2010 the trial court granted summary judgment for the defendants.
Last month, the Second Circuit finally issued its ruling, largely reaffirming summary judgment for the defendants, holding that YouTube is not liable for infringement by its users unless it actually knew, or was willfully blind to, specific instances of infringement or facts of circumstances indicating such specific infringement. But the Second Circuit held that it needed more facts as to whether any of the clips at issue were syndicated (which could impact the analysis) and that defendants might be liable if YouTube exerted “substantial influence” on the activities of users, and the Second Circuit remanded the case for further fact-finding.
So what does the Second Circuit’s ruling mean for other Internet forums where users provide content? It depends on your point of view (as was demonstrated by a lively panel on this topic at the Media and the Law Seminar in Kansas City on April 19). A Hollywood Reporter article boldly proclaimed “Court Sides with Viacom, but YouTube Can Celebrate Small Victories,” emphasizing that the case will continue on remand. But I am more inclined to agree with the Electronic Frontier Foundation’s opinion that the decision “rejected most of Viacom’s litigation agenda — an agenda that that would have upended the DMCA safe harbors on which so much Internet expression relies.” Obviously the analysis and language in the opinion will be parsed for years to come, but on its face, the Second Circuit’s ruling seems to weigh on the side of a strong DMCA safe harbor, which is good news for the Internet.