Viacom v. Google

Viacom v. Google  is moving along in a way that I would have predicted.  On June 23, 2010, Judge Louis Stanton issued a Summary Judgment Order that slammed Viacom.  Viacom has appealed and, by the way, hired Ted Olson going forward. Here's a quick summary, some comments, and a prediction after reading the District Court Order and Viacom's opening brief to the Second Circuit.

SUMMARY

The case is about whether Google is entitled to avoid copyright infringement liability for hosting-- for its users --certain Viacom-owned content on YouTube.com without permission. Google is using 17 U.S.C. Section 512 to argue that it has no infringement liability because it has removed all Viacom content about which it has been notified under the notification provisions of that section, it had no actual knowledge of the specific identity or location of the content in-suit prior to being notified by Viacom, and it could not have known, prior to such notice, that upload or hosting was an infringement.  Further, there was an absence of facts and circumstances from which the identity and location of such specific content would have been apparent. Moreover, according to Google, it did not receive "financial benefit directly attributable" to such specific content and had no "right or ability to control" any specific acts of infringement by its users, as those terms are used in Section 512.  Since all this is true, Google argues,  it enjoys safe harbor immunity under Section 512.

Viacom contends that Google misinterprets the law.  Google need not have had knowledge of any specific content's identity, location, or infringing status.  Nor need Viacom show that Google receives financial benefit from, or can control, specific acts of infringement.  It is enough, says Viacom, that Google had, and has, a general awareness that many of its users post copyrighted content without permission. Because it does, it had the duty to remove the content in suit even before receiving a written notice of infringement from Viacom.  According to Viacom, because it has general knowledge of widespread infringement by users, in order to avoid liability Google must employ technology and processes to independently prevent infringement by users and find infringing content that already exists on its site.

So, the case is largely about interpreting Section 512 to decide how "specific" an ISP's knowledge of infringement needs to be in order to disqualify it from Section 512 safe harbor immunity.

COMMENTS

Google's interpretation of the (internally inconsistent) statute makes the most sense to me.  Section 512 was meant to create a safe harbor where an ISP can find immunity if takes certain easy to understand steps.  To read Section 512 the way Viacom urges converts the law into a no-bright-line rule under which the parties, and the court, need to parse subtle distinctions of copyright law. Viacom's interpretation opens up an infringement analysis that can be second-guessed at no end. How many infringing posts does it take to give an ISP general knowledge of infringement by users of its site?  How many red flags does it need to see?  What about fair use? How many man-hours does it need to spend in deep thought about the subtleties, complexities, and vagueness of the United States copyright law as applied to the Internet? If anything, what Congress was trying to do with Section 512 is create some certainty.  Under Viacom's interpretation, we are not much better off than we were before the law was enacted.

I also like Google's argument that it cannot, as practical matter, determine, for any given item of content, and on the face of that content, whether a user infringed copyrights when he or she posted the content on YouTube.com. For example, much of Viacom's expensive-to-produce and valuable content is often licensed to various parties for use on the web.  Indeed, many content owners themselves use the powerful YouTube platform to syndicate their own content.  How can Google be expected to know whether any particular upload infringes before it is told so by a content owner?  And don't say the answer is digital fingerprinting.  If anything is clear, Google has no obligation to employ that.  Section 512 is not to be construed to require an Internet service provider to monitor its service or affirmatively seek facts indicating infringing activity before it enjoys safe harbor protection.

As an aside, and verging on a rant, it is not quite proper to talk about content, itself, as infringing copyrights.  People, not content, infringe rights. And even if it is correct to say that content itself infringes copyrights, there is no way to determine infringement through an examination of the suspected content itself. To determine whether the act of uploading (by the user) or hosting (by Google) infringes requires an analysis that the ISP cannot make without research and information that it does not have without taking affirmative steps.  And, again, the law does not require those affirmative steps.

PREDICTION

Viacom has filed its brief with the Second Circuit claiming that the District Court Order granting summary judgment to Google was in error.  Interestingly, although I think Google interprets Section 512 more correctly and will, and likely should, win the war, I predict  it will lose this intermediate appeal.  Judge Stanton's Order is too light on facts.  Too focused on the legal standard as a policy matter and not explicative enough about what Google actually knew and when it new it. Whether or not Google's knowledge, awareness, or financial benefit needed to be "specific," the Court of Appeals is not going to like Judge Stanton's failure to work through the pleaded facts.

I predict that whether or not the appellate court addresses the policy question arising from the interpretation of Section 512, it will kick the case back down to the District Court for further fact finding and consideration.

We'll see.