In Viacom v. YouTube appeal, law profs duel over copyright cop duties

November 5, 2013

I’m pretty sure we can all agree that the Internet has wrought fundamental changes in our daily lives. Remember when you had to call friends with encyclopedic memories for pop-culture trivia to remind you of the name of the Brady Bunch’s dog or the lyrics to the second verse of the theme song of Gilligan’s Island? Okay, so maybe the world would keep spinning without instantaneous answers to those sorts of questions, but more seriously, can you recall (if you’re over 40 or so) or imagine (if you’re younger) the practice of law without e-filing? Voir dire without Google and Facebook? Networking without LinkedIn and Twitter?

The Internet is obviously a vastly more revolutionary development than, say, the photocopier. But is it so revolutionary that we should discard old common-law principles of liability to accommodate new technology? Or did Congress carefully incorporate those old legal doctrines when it updated copyright law to acknowledge new digital realities? Amicus briefs by dueling sets of law professors in Viacom’s copyright infringement case against YouTube at the 2nd Circuit Court of Appeals posit quite different answers to questions so unsettled that even the Internet can’t yet answer them.

Three wise men of copyright law – Boston University School of Law dean emeritus Ronald Cass, University of Houston professor Raymond Nimmer and Harvard Law School professor Stuart Brotman – argued in an amicus brief supporting Viacom that even though YouTube’s alleged contribution to infringement of Viacom copyrights took place on the Internet, the same old principles that impose copyright screening responsibility on YouTube still apply. Thirty-one other law professors, including digital cognoscenti Mark Lemley of Stanford, Eric Goldman of Santa Clara and Rebecca Tushnet of Georgetown, argued in an amicus brief filed Friday that Congress specifically limited the common-law liability of Internet service providers, in a legislative triumph that has permitted “extraordinary and unprecedented growth in innovative Internet services based entirely on user expression.”

The debate over responsibility for policing user-generated Internet content for copyright violations is of much more than academic concern. Would Twitter, for instance, be less valuable to investors clamoring for a piece of its initial public offering if it faced liability for failing to screen for copyrighted material? Twitter hasn’t shown up in the 2nd Circuit docket for Viacom v. YouTube, but dozens of other amici have. They’re roughly split between content providers that endorse the position espoused by Viacom’s counsel at Jenner & Block, Shearman & Sterling and Gibson, Dunn & Crutcher – that YouTube had the right and ability to filter videos containing copyrighted materials but chose not to – and Internet freedom advocates who side with YouTube’s lawyers at Quinn Emanuel Urquhart & Sullivan and Wilson Sonsini Goodrich & Rosati in arguing that the DMCA’s safe harbor and “control and benefit” provisions put the onus of copyright policing on content owners, not Internet service providers. I’m choosing to focus on the law professors’ dueling briefs because they have less of a financial stake in the outcome of the 2nd Circuit appeal than most of the other amici.

You probably remember that the 2nd Circuit has already issued one ruling in the long-running infringement dispute between Viacom and YouTube. In April 2012, Judges Jose Cabranes and Debra Ann Livingston vacated a decision by U.S. District Judge Louis Stanton of Manhattan that granted summary judgment to YouTube under the safe harbor provisions of the DMCA. The appeals court remanded the case to Stanton with instructions that he consider whether YouTube was willfully blind to specific infringing activity or that YouTube had otherwise forfeited safe harbor protection because it somehow encouraged users to post infringing videos. But when Judge Stanton heard the remanded case, he once again granted summary judgment to YouTube. Stanton said that general infringement allegations aren’t sufficient to trigger a finding of willful blindness, and Viacom hadn’t shown YouTube to be willfully blind to specific instances of copyright infringement. Stanton also said that YouTube’s decision not to screen all content for copyright violations didn’t expose the site to copyright liability under the framework of the DMCA.

Viacom asserted in its new appellate brief that Stanton’s ruling is an invitation to Internet infringement. “(It) places the entire burden of combating online piracy on content owners, and grants immunity even to avowedly piratical websites that ‘welcome’ and benefit from massive infringement, as long as they comply with take-down notices initiated by copyright owners, scrupulously avoid learning the location of specific infringing clips, and do not ‘participate in’ or ‘coerce’ the infringing acts of users,” Viacom’s brief said.

According to the law professors who support Viacom, Stanton’s ruling misplaces the burden of averting infringement in a way that undermines “one of the most basic principles” of liability. “Legal responsibility generally rests on the party best able to prevent, limit or eliminate harm,” wrote their counsel, Lawrence Sucharow of Labaton Sucharow (a firm better known for securities class actions than copyright appeals!). In this situation, YouTube “is uniquely situated to limit or prevent harm,” the amicus brief said. It chose not to, despite warnings that users were posting infringing videos. So according to Viacom’s allies, YouTube should not be protected by the DMCA’s safe harbor provisions.

“That the harm caused in this case was the result of activities that took place over the Internet should make no difference,” the brief said. “The principles of efficient harm-avoidance have equal application to conduct using ancient and modern technologies and have been applied for generations in similar form, whether the harm is transmitted in person or over the Internet.”

YouTube and its law professor friends countered that because of the DMCA, it matters very much where the supposed infringement occurred. Under the 2nd Circuit’s previous ruling in the case, YouTube argued in its appellate brief, Viacom would have to show that YouTube was substantially influencing its users to violate copyrights in order to establish vicarious liability under the DMCA. “The DMCA necessarily provides greater protections for service providers than do the common-law inducement standards,” the YouTube brief says.

The law professors supporting YouTube wax more poetic about the DMCA, in a brief filed by Rebecca Engrav of Perkins Coie. “Over the last fifteen years, the scheme that Congress implemented in the DMCA, as interpreted by the federal courts in a number of significant and high-profile cases (including this one), has been resoundingly successful at forging an equitable balance among … conflicting interests,” the brief said. “Website operators and providers of innovative online services have a clear and straightforward set of ground rules to follow, allowing them to conform their operations to the law and, thereby, avoid the specter of potentially crushing liability. At the same time, copyright holders, through the notice-and-takedown process spelled out in (the law) have simple and cost-effective means to curtail large numbers of unauthorized and infringing uses of their protected expression. Internet users – i.e., the public – have reaped profound benefits from this compromise.” Viacom’s attempt to rewrite the DMCA to impose screening duties for Internet companies informed of general allegations of infringement would upset the delicate balance the DMCA has struck, the law professors said, with dire consequences for now-thriving Internet businesses.

The 2nd Circuit isn’t the only appellate court to be concerned with interpreting the DMCA, and Viacom v. YouTube isn’t the only Internet copyright case in New York. But it’s a biggie. Oral arguments will probably take place early in 2014.

(Reporting by Alison Frankel)

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