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Viacom v. YouTube: A Win for the Internet?

On Thursday, April 5, 2012, the Second Court of Appeals issued its decision in the Viacom v. YouTube lawsuit – a case that focuses on whether the safe harbor provisions under the Digital Millennium Copyright Act (DMCA) protects YouTube from liabilities for hosting unlicensed copyrighted material on its website.  Under the DMCA, online service providers are immune from monetary liability for copyright infringement as a result of certain activities —the one at issue in this case is the safe harbor provision for “Information Residing on Systems or Networks At Direction of Users” (17 USC 512(c)).  Both sides are claiming victory.  

In 2007, Viacom accused YouTube (which had been acquired by Google) of allowing users to illegally upload copyrighted content to its website. YouTube prevailed in 2010, when a District Court ruled that YouTube was an ISP that qualified for protection under the DMCA’s safe harbor provisions. The court found that YouTube was protected from liability for the copyright infringing acts committed by users because it removed infringing videos once notified by copyright owners. Viacom, however, maintained that YouTube did not qualify for DMCA protection because documentation showed that YouTube was aware of the copyright infringement, but took no action.

The latest decision upholds the earlier ruling that YouTube is protected from liability unless it explicitly knew of specific infringement (cited in the opinion as “willfully blind”).  The opinion also emphasized that YouTube did not have a responsibility to monitor user content.

All of this seems to indicate a win for the Internet, the DMCA safe harbor provisions, and innovation, which is good news for campus network providers as well as for those on campuses who are creating content.  However, the case was not a clear win as the court returned it to the lower court for further fact-finding, including the “willful blindness” piece.  The court said that "willful blindness" regarding specific instances of infringement could disqualify a company from the safe harbor protection.  “It is not clear what kinds of activities would give rise to a finding of willful blindness, given the express rejection of any obligation to monitor,” said the Center for Democracy and Technology in its analysis of the opinion.

This is not the end of the case, but this decision does seem to affirm that the DMCA safe harbor provisions provide space for innovation and creativity while preserving the rights of copyright owners.  EDUCAUSE will continue to monitor and report on this issue.

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