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.