The never ending efforts of Viacom, a content provider, to breach the protections provided by the Digital Millennium Copyright Act of 1998 have been foiled again. This time, Viacom failed to convince a judge the DMCA safe harbor provisions should not apply to YouTube.
The DMCA provides any site with immunity from monetary liability related to copyright infringement for any materials uploaded by users so long as the site meets certain requirements such as designating a DMCA agent to receive complaints. In English, this means YouTube cannot be held liable if one of the millions of members of the site uploads a copy of a song, television show or whatever. Only the member uploading the content is on the hook.
The problem with this scenario is the copyright holders end up seeing their content posted time and again on sites, postings for which they receive no royalties. Under the DMCA, they can serve takedown notices, but the web is so extensive that this turns into a never ending process.
Viacom is a predator. It has long been an aggressive company in virtually all facets. They also happen to be the parent company and copyright holder for content ranging from the Daily Show to a vast library of musical works.
The company has been involved in a long, drawn out copyright infringement lawsuit against YouTube and, perhaps more importantly, Google as the owner of YouTube. The Viacom argument has boiled down to claiming the immunity provided by the DMCA should not apply to YouTube because the video site knows infringing content is being uploaded and turns a blind eye to it.
The courts have thrown this case back and forth between the trial and appellate levels. The most recent step is the trial court judge denying the argument put forth by Viacom. Specifically, Judge Stanton notes:
“…knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or participate in the infringement.”
That noise you just heard was the air going out of the Viacom balloon.
What It Means
So, what does all this mean? The DMCA safe harbors remain in place as for now. For site owners, this is welcome news. Without such immunity, allowing users to post content on your site would become very dangerous since you would essentially be liable for anything they posted. While the Facebooks of the world could come up with expensive solutions for policing user-generated content, smaller operators such as forums would most likely have to close down.
Viacom is promising to appeal this ruling. An appeal in a case of this type would usually seem a dubious effort, but the judges of the 2nd District Court of Appeals are not particularly savvy when it comes to the web. Their last ruling in this case was laugh-out-loud bad, so we need to be a bit carefully in saying this case is over. Still, Viacom is on its last legs in this litigation.
As things stand now, the DMCA remains in full force and effect. Posters may dislike it, and copyright holders hate it, but this is a powerful and significant protection for websites. If you own a site and allow users to post on it, you can breathe a sigh of relief for now.
Richard A. Chapo, Esq.