This just in: Google has beaten Viacom on summary judgment. The judge has just ruled [PDF] that Google does qualify for
DMCA safe harbor protection. "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements," the judge wrote. So "the burden is on the owner to identify the infringement." This is huge.
Of course, Viacom will appeal, they say. When I see people ganging up on Google for whatever flaws they are looking at, notice also please that Google fought for the Internet in this case, at great expense. And they won a victory for all of us. In fact, I had decided that if they lost, I would shutter Groklaw. It would have been legally too risky to continue. So, thank you, Google, for not letting the Hollywood content bullies destroy the Internet as we know it.
The operative paragraph in the judge's order, to me, is this one:
The tenor of the foregoing provisions is that the phrases "actual knowledge that the material or an activity" is infringing, and "facts or circumstances" indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users' postings infringe a copyright would contravene the structure and operation of the DMCA. Viacom was trying to shift the burden of enforcement of copyrights on to Google, but the judge said they don't know unless Viacom sends them a notice whether Viacom even intended to put the material on YouTube. It could be fair use. That's not Google's job to determine, the ruling says. It's up to Viacom to let Google know. And when they sent one massive take down notice in February 2, 2007, by the very next day, virtually all 100,000 videos Viacom had accumulated and sent in the one mass notice were removed. Surprise.
Here's what YouTube said last March about why it is impossible for them to know what is and isn't authorized:
Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices. Here's what Google's VP and General Counsel Kent Walker, says the ruling means:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.
This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We're excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world. As Victoria Espinel, U.S. IP Enforcement Coordinator's report stated recently, “Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it” by means of fair use. Of course, the public's contribution is to do precisely that, relying on fair use but not crossing the line and causing legal issues for Google to have to deal with. This book, Bound by Law, can help you know where the line is.
If you want to review, here's Viacom's original complaint as PDF and as text, Viacom's 1st Amended Complaint and Google/YouTube's Answer and more filings are here.