The Associated Press, Microsoft, and musical group The Eagles are among dozens of organizations now urging an appellate court to rule in Viacom's favor in its copyright infringement lawsuit against Google's YouTube.
In a flurry of friend-of-the-court briefs filed late last week, a broad array of media and entertainment organizations, think tanks, academics, performing artists and others argue that U.S. District Court Judge Louis Stanton incorrectly ruled that the Digital Millennium Copyright Act's "safe harbor" provisions protected YouTube from copyright infringement liability based on material uploaded by users. In general, the safe harbor provisions immunize Web sites from infringement liability for user-submitted clips submitted, providing that the sites promptly remove them upon request.
Stanton dismissed Viacom's lawsuit against YouTube in June, rejecting Viacom's argument that YouTube should be held liable for infringement despite the safe harbors on the theory that company executives knew some clips on the site were unlawful. Instead, he ruled that YouTube qualified for the safe harbors despite evidence that the company's management was generally aware that some clips weren't authorized.
"General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements," he wrote in a decision granting Google summary judgment. Viacom appealed that ruling and asked the 2nd Circuit Court of Appeals to reverse Stanton's decision and award it summary judgment.
The company argues that YouTube shouldn't get the benefit of the safe harbors because it built an audience by offering pirated clips. Viacom argues that YouTube had notice of infringement -- but, hoping to draw traffic, declined to deploy filters to screen out pirated clips. "YouTube indisputably was aware of massive infringement," Viacom says in its appellate brief. "If it wished to remain in the safe harbor, it was obligated to take reasonable steps (no heroic acts required) to prevent further infringement."
The assortment of groups weighing in on Viacom's side generally argue that YouTube should have done more to block infringing clips than simply remove them in response to complaints by content owners. The groups allege that Stanton's ruling, immunizing YouTube from liability, leaves other Web sites with the incentive to ignore copyright violations in order to draw traffic.
For instance, one brief filed primarily by coalition of news organizations -- including the AP, Newspaper Association of America, Washington Post and Gannett -- argues that upholding Stanton's decision would "sanction a deeply disturbing business model."
"It would authorize -- and, by its economic logic, encourage -- enterprises to exploit infringing copyrighted content in order to attract traffic and create value for their sites to the detriment of content owners, as long as the enterprises respond to formal 'takedown' notices," they argue.
Google hasn't yet filed its appellate brief in the case; any friend-of-the-court briefs on Google's behalf will not be filed until after Google submits its papers.