Viacom tells appeals court YouTube profited from infringement, so no Safe Harbor

31 05 2012

The entertainment giant Viacom is asking the United States Court of Appeals for the Second Circuit to overturn last year’s ruling that Google is not liable for copyright-infringing Viacom content uploaded to its YouTube site. Speaking Tuesday before a three-judge panel, a Viacom lawyer argued that the lower court erred in holding that YouTube was eligible for the safe harbor provisions of the Digital Millennium Copyright Act.


April 5, 2012 | By Corynne McSherry

Viacom v. Google: A Decision at Last, and It’s Mostly Good (for the Internet and Innovation)


The Internet can breathe a sigh of relief today.  In the latest twist in the long-running Viacom v. YouTube litigation, the Second Circuit Court of Appeals revived the entertainment giant’s suit against Google – but simultaneously eviscerated most of the legal theories on which the lawsuit was based. . . .

Today’s decision largely affirms that earlier ruling, finding that YouTube is protected from liability except where the company actually knew of (or was willfully blind to) specific instances of infringement of material at issue in the case, or facts of circumstances indicating such specific infringement.   The appellate court also held that YouTube could be on the hook if it was “willfully blind” to specific infringement – but stressed that YouTube did not have a duty to monitor user activities.  In other words, the company can’t have made a deliberate effort to avoid guilty knowledge, but that doesn’t mean it had an affirmative duty to seek out infringing activity. And, in a bit of a technical point, the court said it was unclear whether syndicating clips might be the kind of activity contemplated by the safe harbors, but that it needed more facts as to whether any of the clips at issue were actually syndicated.


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