Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

تمرين 10

Viacom International, Inc. v. YouTube, Inc. 718 F. Supp. 2d 514, 95 U.S.P.Q.2d 1766 (2010)
If I Find It on YouTube, It's Not Mine or Fine
Facts
YouTube, owned by Google (defendants), operates a website at www.youtube.com where users may upload video files free of charge. Uploaded files are copied and formatted by YouTube's computer systems and can then be viewed on YouTube. Presently, over 24 hours of new video-viewing time is uploaded to the YouTube website every minute.
The presence of copyright-infringing material on YouTube's website was attractive to users, and their increased usage resulted in more income for YouTube from advertisements. Viacom (and other television and production companies) (plaintiffs) claim that tens of thousands of videos on YouTube were taken unlawfully from Viacom's copyrighted works without authorization and that YouTube either knew or was aware of facts or circumstances that indicated infringement was afoot.
YouTube had an agent designated to receive notices from copyright owners about YouTube infringements. When the agent received infringement notices, the infringing material was removed quickly. YouTube has removed all the clips that Viacom and the others claim infringed their copyrights.
Viacom brought suit to require YouTube to actively search for infringing clips and remove them. Viacom argues that YouTube has liability for infringement because it is aware of infringing uses of its site and that it should not have to notify YouTube of all infringements.
YouTube moved for summary judgment on the grounds that the Digital Millennium Copyright Act's (DMCA) had a safe harbor that protected it against direct and secondary infringement claims.
Judicial Opinion
STANTON, District Judge
Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy.
At the same time, without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet. By limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.
Subsection 512 (c)(1)(A)(ii) of DMCA can best be described as a "red flag" test. A service provider need not monitor its service or affirmatively seek facts indicating infringing activity. However, if the service provider becomes aware of a "red flag" from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.
A service provider wishing to benefit from the limitation on liability under subsection (c) must "take down" or disable access to infringing material residing on its system or network of which it has actual knowledge or that meets the "red flag" test, even if the copyright owner or its agent does not notify it of a claimed infringement. For their part, copyright owners are not obligated to give notification of claimed infringement in order to enforce their rights. The common-sense result of this "red flag" test is that a provider proceeding in the face of such a red flag must do so without the benefit of a safe harbor.
The important intended objective of this standard is to exclude sophisticated "pirate" directories, which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted from the safe harbor. Such pirate directories refer Internet users to sites that are obviously infringing because they typically use words such as "pirate," "bootleg," or slang terms in their uniform resource locator (URL) and header information to make their illegal purpose obvious to the pirate directories and other Internet users.
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) and its progeny furnish core principles heavily relied on by plaintiffs and their supporting amici [friends of the court], [but] have little application here. Grokster addressed the more general law of contributory liability for copyright infringement, and its application to the particular subset of service providers protected by the DMCA is strained.
The Grokster model does not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes. To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law. In this case, it is uncontroverted that when YouTube was given the notices, it removed the material. It is thus protected "from liability for all monetary relief for direct, vicarious and contributory infringement" subject to the specific provisions of the DMCA.
Case Questions
1. What is the difference between Grokster's and YouTube's roles in infringement claims?
2. Why does the DMCA not require YouTube to search for infringing videos that have been posted?
3. What will Viacom and other copyright holders need to do to protect their copyrighted films?