2008 Archive

Viacom Could Face Uphill Climb in Suit against YouTube

Viacom’s $1 billion copyright infringement lawsuit against YouTube signals a major escalation of the online technology wars.

"I see this as an evolution of the music file-sharing cases," says Berkeley Law instructor Jason Schultz ’00, acting director of the Samuelson Law, Technology & Public Policy Clinic. "Where it used to be Goliath suing David, a small peer-to-peer startup company, now it’s one corporate Goliath suing another."

Filed in a New York federal court, the suit alleges that YouTube profits from hosting videos that infringe Viacom’s copyright. Viacom, which owns television channels such as Comedy Central, MTV and Nickelodeon, claims YouTube is liable when users publish clips on its website from Viacom’s copyrighted shows. It alleges that such videos have been viewed more than 1.5 billion times on YouTube, violating copyright law and falling outside the online provider protections of the 1998 Digital Millennium Copyright Act (DMCA).

YouTube argues that in passing the DMCA, Congress recognized that many online sites could not exist if they were liable whenever users uploaded copyrighted material. YouTube says it is shielded from liability because the site itself does not actively post infringing material and quickly removes infringing videos when notified by content owners.

Legal Test for User-Submitted Content

Copyright experts see the case as a legal testing ground for companies involved in user-submitted content. Although the DMCA contains a "safe harbor" provision to companies for material uploaded by users, Viacom says YouTube ignores its obligations to curb infringement, generating web traffic and advertising revenue from unlicensed content.

"YouTube claims the DMCA was designed to ensure that by removing material when notified of copyright infringement, it is immune from money damages," Schultz says. "Viacom’s main argument is that YouTube doesn’t qualify for those safe harbors, but that may be a tough sell."

A former senior staff attorney at the Electronic Frontier Foundation, one of the world’s leading digital rights groups, Schultz has handled many high-profile technology matters affecting issues of free expression, fair use, and innovation. Having worked with educators and policymakers to preserve a balance between intellectual property protection and the public interest, he sees the court facing a similar challenge.

"The issue is who’s responsible for bad behavior by the user," Schultz says. "If I upload the last season of Grey’s Anatomy, am I solely responsible or does YouTube also share in the blame? There’s no real way for YouTube to monitor everything on its site, so if Viacom prevails it could dramatically change the landscape of how people exchange information online."

No Easy Fix for Courts

With no direct law on point and two corporate behemoths squaring off, a long bout of litigation likely awaits. Schultz believes YouTube has a strong case because it provides clear notice of its takedown policy and quick removal of allegedly infringing videos.

"The court must decide how to interpret the DMCA and how much leeway to give new technologies," Schultz says. "In 10 years since it passed, technology has been outdated by several generations. Viacom’s argument goes to an original textualist view of the law, but YouTube can reasonably argue that Congress didn’t intend for it to apply only to technologies of the time."

In a 2001 case that also centered on illegal downloads of copyrighted material, the U.S. Ninth Circuit Court of Appeals held that online music-sharing service Napster was a contributory infringer. But while Napster admitted that 90 percent of its content was unauthorized, pre-litigation studies suggest at least half the material on YouTube is authorized thanks to the explosion of independently-produced content.

Another potential problem for Viacom: the difficulty of trying to craft a fair and workable remedy.

"Remember, courts like simple solutions," says Schultz. "The specter of remedy will hang over this case. If a court says YouTube must police its own site, that leads to a muddy, complex world. The struggle is not only with allocating responsibility, but with efficiency and ease of administering that responsibility."

By Andrew Cohen