• by Wendy Davis  @wendyndavis, May 3, 2011

 

Google could lose its incentive to stem copyright infringement on YouTube if an appellate court rules in favor of the video-sharing site in its copyright infringement battle with Viacom, the company says in its final set of legal papers.

"If, as YouTube argues, its obligation to act was triggered only by ... takedown notices -- then all of its belated efforts to 'combat copyright abuse' -- content ID digital fingerprinting, the new 'copyright school,' and the like, all assertedly undertaken in "good faith" -- would be mere gratuitous gestures that it could withdraw as soon as its interpretation of the DMCA [Digital Millennium Copyright Act] is affirmed," Viacom argues in a brief filed last week with the Second Circuit Court of Appeals."

Viacom's filing is part of its effort to convince the appellate court to reinstate its 2007 lawsuit against YouTube for allegedly hosting pirated clips. U.S. District Court Judge Louis Stanton in New York dismissed Viacom's lawsuit last year, ruling that the federal Digital Millennium Copyright Act's safe harbor provisions protected YouTube from liability.

The safe harbors generally state that sites are immune from liability based on material uploaded by users, provided that the sites remove the material upon request. But the safe harbors contain some exceptions, including one for sites that know about infringing clips and don't take action on their own.

Viacom presented evidence that YouTube executives knew about copyright infringement on the site, but Google successfully argued that such general knowledge was not sufficient. Instead, the company argued, it was entitled to immunity unless it knew which specific URLs contained infringing material.

Google also argued that it couldn't tell which Viacom clips were infringing because the company itself or its agents had uploaded many of them.

Stanton agreed with Google's interpretation of the safe harbors, ruling that Google had no way of knowing which particular clips are infringing.

Viacom is now asking the appellate court to reverse that decision, arguing that Google should have done more to stem infringement. Viacom argues that even though it authorized some of the clips on the site, Google should have flagged those clips and asked the media company whether it wanted the material to remain online.

"If YouTube had deployed just the filtering technologies it had in hand, those technologies would have automatically identified the authorized clips and given Viacom the choice as to whether they should remain on YouTube or be removed, completely alleviating this supposedly vexing difficulty."

In the last few years, YouTube has implemented new anti-infringement measures, including a  copyright school for account holders that have been the subject of at least three copyright complaints. Google formerly banned account holders from uploading after three complaints, but now allows them to restore their accounts if they watch a 5-minute clip and then pass a short multiple choice test about copyright law.

The appeal has drawn the interest of dozens of outside groups that filed friend-of-the-court briefs. Among the groups weighing in on Google's side are Human Rights Watch and Reporters Without Borders. "Social media platforms, including YouTube, have become vital tools in global struggles for human rights, free expression and political liberty," the organizations argue. "Rules ... which would hold online service providers massively liable for infringing material placed online by users, would jeopardize these important benefits."

Groups siding with Viacom include the American Federation of Musicians, Directors Guild of America and Screen Actors Guild. "YouTube was one of the initial distributors of infringing content via streaming technology, and is arguably the most famous," those groups argue. "It was a catalyst and engine for copyright infringement on a global scale, unleashing a Pandora's box of illegal activity that will continue to threaten the output of America's creative industries for years to come."