Who’s sorry now? copyright safe harbor

A recent appellate decision addresses circumstances that YouTube and Google initially perceived as small missteps in Viacom International, Inc. et al v. YouTube, Inc. and Google Inc, et al [hereinafter “Viacom” and “YouTube”]. The facts of this case are as follows. As is generally known, YouTube allows users to upload and view video clips free of charge to its website. However, the YouTube participant must agree not to submit works which the owners of works with copyright did not authorize.

Viacom’s position was that YouTube and Google were actually aware of specific infringing works on their website. To establish this knowledge, Viacom relied upon several documents that it obtained from YouTube. For example, a series of e-mails from one founder/executive of YouTube to another requested that infringing footage from prominent football associations be removed from the YouTube website. Nevertheless, the infringing material allegedly remained on the site. Viacom also relied upon another report from one YouTube founder to another founder that stated in relevant part: “We would benefit from pre-emptively removing content that is blatantly illegal and likely to attract criticism.” However, YouTube did no remove this content from the website on the premise that it would conduct a more thorough infringement analysis in the future. Unfortunately, this decision exposed YouTube to infringement liability in the interim.

According to additional documents, a YouTube founder requested that the remaining two founders remove several Bud Light commercials that were posted without authorization from the copyright owners. However YouTube ultimately left these commercials posted on the YouTube website for at least an additional week which “can’t hurt.” In still another instance, YouTube reposted a space shuttle clip for which Turner Media owned the copyright. YouTube then decided that this space shuttle clip was of such popular interest that YouTube would remove it only when it had optimally benefited from the clip’s popularity and when You Tube was “better known.”

The appellate court concluded that only actual knowledge or awareness of specific instances of infringement will disqualify a service provider from the statutory safe harbor for copyright infringement liability. The federal appeals court also concluded that the United States Safe Harbor of the Digital Millenium Act requires that an internet service provider have actual knowledge or awareness of a specific infringing activity. The court then directed the lower court to determine whether these documents of the YouTube founders sufficiently evidenced that YouTube had actual knowledge or awareness of specific infringing material posted on their site. If so, then You Tube is liable for copyright infringement under the copyright statute.

One important lesson from this case is that is no such thing as “leaving it up for a while” on the mistaken belief that owners will ignore that works with copyright are posted without their authorization. Unfortunately, most businesses do not have the financial resources for this litigation, much less to pay damages for missteps similar to those of YouTube. Consequently, it is important for businesses and organizations with interactive websites to be extremely vigilant so unauthorized works are not posted in the first instance. If they are inadvertently posted and there is a complaint, then they should immediately be removed from the site pending a thorough investigation. For entities such as alumni organization interactive websites, posts from outside the university are ill-advised unless a knowledgeable person (i) continuously monitors the website; (ii) consistently screens all potential posted content; and (iii) immediately removes posted content upon receiving a complaint which initially appears legitimate.

©2014 Adrienne B. Naumann, Esq.
Ms. Naumann does not endorse, sponsor or post the advertisements at adriennebnaumann.wordpress.com.

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