• by Wendy Davis  @wendyndavis, April 23, 2009

A federal appellate court has rebuffed a request from Google's YouTube to dismiss a copyright infringement lawsuit on the narrow ground that the plaintiff in the case, videographer Robert Tur, voluntarily withdrew the lawsuit in order to join a pending class-action in New York.

The 9th Circuit Court of Appeals ruled last week that Tur's decision to drop the California case rendered Google's appeal moot. Google had argued that the court should decide the matter because a favorable ruling could scuttle Tur's claims in New York.

The appellate court also denied Google's request that Tur pay the company more than $370,000 -- the amount Google said it spent defending itself in the California matter. The 9th Circuit ruled that Google had not adequately documented its legal costs. "The district court had no way to distinguish between useful and non-useful work based upon the conclusory affidavit submitted by YouTube's counsel," the appellate court wrote.

A Google spokesperson said the company was disappointed with the decision. "We are disappointed that Tur was given a second chance to pursue his frivolous claims in another venue, but we remain confident that they are without merit and we will continue to defend against them vigorously," the company stated.

Three years ago, Robert Tur, who owns the Los Angeles News Service, became the first person to sue YouTube for copyright infringement after a video of the beating of Los Angeles truck driver Reginald Denny surfaced on YouTube.

YouTube moved for summary judgment on the ground that it was immune from liability under the Digital Millennium Copyright Act's "safe harbor" provisions. Those portions of the law say that sites like YouTube usually can't be found liable for copyright infringement based on material uploaded by users, as long as the sites remove infringing material at the owners' request.

U.S. District Court Judge Florence Marie-Cooper denied that request in June 2007, stating that she needed more information to determine whether YouTube qualified for the safe harbor provisions. "There is insufficient evidence regarding YouTube's knowledge and ability to exercise control over the infringing activity on its site," she wrote.

Tur is now one of the plaintiffs in a potential class-action lawsuit pending in New York against Google/YouTube. Others include a U.K. soccer organization, a French tennis association and the National Music Publishers' Association. For now, that lawsuit is proceeding side-by-side with Viacom's copyright infringement case against YouTube.

Google has said that that the Digital Millennium Copyright Act doesn't require it to proactively seek out infringing clips and remove them. Rather, it argues, the law only requires Google to remove copyrighted material upon request.

But content owners say that Google is in a better position than them to know what's on the site and delete infringing clips. "The major hurdle facing our clients is that the cost of monitoring the huge YouTube Web site is prohibitive," said Tur's attorney, Hal Shaftel, a partner at Proskauer Rose.