Viacom, which first sued YouTube in 2007, says the company grew its audience by allowing users to post clips that infringed copyright. But Google says YouTube has always complied with the Digital Millennium Copyright Act by taking down infringing clips as soon as the copyright owner complained.
The federal judge presiding over the case, Louis Stanton in New York, has sided with Google on two occasions. In 2010, Stanton granted Google's motion to dismiss the lawsuit, ruling that the service was immune from liability because it took down infringing clips as soon as Viacom complained about them.
Viacom appealed, and the 2nd Circuit Court of Appeals sent the case back to Stanton with instructions to consider whether Google was “willfully blind” to infringement by users.
Stanton did so, and this April ruled in Google's favor for the second time.
Viacom now says it should have been able to ask a jury to decide whether Google was “willfully blind” to the fact that YouTube users sometimes uploaded clips that infringed copyright.
Viacom specifically criticizes Stanton's decision to discount a key piece of Viacom's evidence -- a March 2006 report prepared by YouTube founder Jawed Karim, which said that clips of "well-known shows," including "Family Guy," "South Park," and "MTV Cribs," were present on the site.
Stanton said in his ruling that Karim's memo doesn't “tie his observations to any specific clips,” and therefore doesn't prove that YouTube was willfully blind to infringement
But Viacom says it need not specify which clips were infringing. Instead, the company says it's enough to show that a Web services company knows about infringement and avoids learning the location of the URLs where those clips reside.
“To illustrate the point, if a service provider knows that The Daily Show is being repeatedly infringed on its service, but the service provider deliberately avoids learning the location of specific infringing Daily Show clips, then under [Stanton's] reading the service provider is not willfully blind,” Viacom argues. “It can rest assured in its deliberate ignorance and has no duty to take any action to locate the infringing clips of The Daily Show that it knows are there.”
Viacom isn't just asking for the chance to take its case to the jury. The company also is taking the rare step of asking the appellate court to send the case to a new trial judge. “Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court's erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge 'to preserve the appearance of justice'," Viacom argues.