• by Wendy Davis  @wendyndavis, April 1, 2011

Google has filed papers this week asking the 2nd Circuit Court of Appeals to uphold a decision dismissing Viacom's $1 billion copyright infringement lawsuit against YouTube.

The search giant argues that U.S. District Court Judge Louis Stanton in New York correctly decided that YouTube was entitled to the Digital Millennium Copyright Act's safe harbor provisions. Those provisions generally say that Web sites are immune from liability for users' infringement, as long as they remove the material upon request of the content owner. But the safe harbors have some exceptions, including ones that apply when Web sites are aware of infringement or profit from it.

In December, Viacom filed an appeal of Stanton's dismissal order. The media company argues that Stanton wrongly discounted evidence that YouTube knew users were uploading pirated clips. Viacom says that internal YouTube emails show that company executives were aware that much material on the site was copyrighted.

But Google argues that even if the company was aware of infringement on the service in general, it couldn't know which specific clips were unauthorized until Viacom sent takedown requests. Google adds that Viacom itself uploaded videos to the site, making it difficult to determine which clips were authorized and which were infringing.

"This case shows why Congress required particularized knowledge and put primary responsibility on copyright owners, not service providers, to seek out infringing activity," Google argues in court papers filed on Thursday. "Plaintiffs themselves complicated any infringement inquiry exponentially in the way they used YouTube to advance their business interests. Plaintiffs extensively and aggressively posted clips of their copyrighted material on YouTube, and they authorized their agents and licensees to do likewise."

Viacom also argued in its appeal that Stanton didn't adequately consider evidence that YouTube executives were "willfully blind" to copyright infringement on the site. Viacom said that YouTube showed willful blindness by disabling a feature that allowed users to flag videos as pirated, and also by failing to deploy digital fingerprint filtering technology on all uploads. Viacom alleged that YouTube only used the filtering technology for content owners who agreed to license their work to Google.

But Google argues that the DMCA doesn't require companies to proactively police their sites for copyright infringement. "What plaintiffs label willful blindness is actually allegiance to the DMCA, which expressly relieves online services of any obligation to affirmatively monitor their sites for infringement," the company says in its brief. "Embracing the statute's directives cannot be a basis for depriving YouTube of safe-harbor protection."

When Viacom initially sued Google back in 2007, few if any judges had ruled on how the DMCA safe harbors applied to video-sharing sites. Since then, several judges in addition to Stanton have dismissed lawsuits by media companies against social sites. Among them, U.S. Judge A. Howard Matz in Los Angeles in 2009 dismissed a lawsuit by Universal Music Group against Veoh. "The DMCA does not place the burden of ferreting out infringement on the service provider," Matz wrote in the case.