1. [Updated] Viacom v. YouTube: It’s Baaaaaaaack

    [Updated May 14, 2012:]

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    April 11, 2012 - The Second Circuit Court of Appeals says that Viacom deserves a second shot at Google, reversing a 2010 decision to dismiss Viacom’s $1 billion copyright infringement lawsuit against Google and its YouTube platform. From law firm Loeb & Loeb:

    “The Second Circuit found that while the district court correctly held that §512(c), the safe harbor provision applicable to online service providers, requires knowledge or awareness of specific infringing activity before an online service provider is disqualified from protection, summary judgment on the issue was premature, because evidence existed from which a reasonable jury could conclude that YouTube had actual knowledge or awareness of specific infringing activity on its website.” (Second Circuit Reverses Dismissal of Viacom’s $1 Billion Copyright Case Against Google). 

    While the decision only represents a partial victory for Viacom, it’s a significant development for all content providers. Law firm Foley Hoag: 

    “The Second Circuit’s ruling confirms that the DMCA safe harbors are viable, but that they do not mean online content hosts can wash their hands of all responsibility for combating infringement. In particular, service providers cannot simply sit back and wait for a copyright owner to learn of infringement and request that it be removed. Rather, if the service provider has knowledge of an identifiable infringement – even if that knowledge was developed internally rather than from a takedown notice – the provider should remove the content in order to maintain its safe harbor protection.” (Viacom’s Copyright Suit against YouTube Gets a Second Chance from the Second Circuit)

    But the core issue in the lawsuit – whether YouTube turned a blind eye to what it knew to be copyright infringement – has yet to be decided. From Mintz Levin: 

    “The Court stated that ‘a reasonable jury could conclude that YouTube had ‘knowledge or awareness’ of copyright infringement ‘at least with respect to a handful of specific clips.’  After reviewing such evidence, the Second Circuit vacated the summary judgment order and instructed the district court to determine on remand whether any specific infringements of which YouTube had knowledge or awareness correspond to the content at issue in the litigation.” (Viacom Lives to Fight Another Day in YouTube DMCA Suit

    More importantly, a lower court ruling in Viacom’s favor would not only force ISPs to change the way they stop copyright infringement and online piracy, it would also have a lasting impact on the future of the internet. From Ifrah Law: 

    “If the lower court ends up determining that YouTube is on the hook for willful blindness, ISPs’ current M.O. of relying on notice-and-takedown procedures will need to change. Some might argue such a move could stifle innovation and curb ‘Internet freedom.’ But adoption of a willful blindness doctrine may end up benefitting service providers and hosting companies: It could strengthen the argument that new legislation à la SOPA or PIPA is unnecessary as the DMCA already provides sufficient protection against copyright infringement, otherwise known as online piracy.” (Second Circuit YouTube Ruling Will Have Major Impact for Online-Piracy Debate

    We’ll be watching (pun intended) this case closely.  

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    Follow the legal commentary and analysis on the lawsuit, and other intellectual property law updates, at JD Supra»