This week, the Southern District of New York granted summary judgment for Google in its one billion dollar case against Viacom, finding that YouTube, which is owned by Google, is protected under the safe harbor of the Digital Millennium Copyright Act. Viacom, along with other plaintiffs, sued YouTube for copyright infringement.

Viacom first filed this case in 2007, alleging copyright infringement for facilitating the posting of copyrighted material on YouTube. YouTube maintained that it complied with DMCA takedown notices, and was therefore not responsible under the one of the safe harbors in the Act.

Under the DMCA, a copyright holder can notify YouTube of an infringing post. YouTube will take down the content while it is being investigated. Unless the content is found to be infringing, it will be reposted once the investigation is complete. The district court found that YouTube had complied with all DMCA takedown notices, and in one instance took as many as 10,000 videos down in one day.

With one billion dollars at stake, it’s not surprising that the case became as messy as it did. YouTube alleges that Viacom employed marketing firms to post pirated videos on YouTube in order to increase the amount of infringing videos posted. YouTube alleges that the infringing videos posted by Viacom and its agents were altered to look more like videos taken from the cutting room floor, so viewers would believe the videos to be unique. YouTube also uncovered emails exchanged between Viacom executives discussing the best ways to make the videos appear “hijacked.”

Of course, Google’s image does not come up clean after this nearly three-year long battle.Emails surfaced that seem to imply that Google not only knew of the large amount of illegal content on YouTube prior to purchasing it in 2006, but that it valued the illegal content. In one email, YouTube co-founders discussed the value of illegal content to make the website go viral. Furthermore, in 2006, Google executives discussed a survey that indicated that eighty percent of YouTube content was pirated material.

In granting summary judgment in favor of Google, the judge stated that while a jury could find that Google was aware of infringing material, general awareness is not the same as “knowledge of specific and identifiable infringements of individual items.”

Interesting evidence aside, the effect of this outcome could be far reaching. While the ultimate culpability in instances of posting infringing material lies with the uploader, not the host site, the DMCA places the ultimate burden for policing this behavior on the copyright holder. Is this where the responsibility should lie? Viacom obviously would disagree. Viacom reads the DMCA to require service providers to review content before it goes live. With roughly thirty hours of new video posted on YouTube every minute, it is ridiculous to expect YouTube to have every video screened for infringing content. Still, it is only slightly less ridiculous for copyright holders to bear the burden of policing the Internet.

Viacom plans to appeal this decision to the Court of Appeals for the Second Circuit.

— Theresa Weisenberger

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