YouTube is no stranger to copyright infringement issues. In 2008, Viacom filed a $1 billion copyright infringement suit against YouTube, claiming that the video site contributed to an explosion of copyright infringement by permitting users to post infringing videos. The federal district court eventually dismissed Viacom’s action against YouTube on grounds that the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions protected YouTube from liability. You may recall that we’ve written about the safe harbor provisions of the DMCA in this newsletter. Under the the safe harbor provisions, web site owners are immune from liability arising out of materials uploaded by others unless the site owners know about infringing materials and fail to take action. In Viacom, the U.S. District court held that YouTube’s executives had only general knowledge of infringing activities, which was not specific enough to trigger liability under the DMCA.
Viacom has not surrendered. In December 2010, it filed an appeal with the U.S. Court of Appeals for the Second Circuit and in early May 2011, the last round of briefs were filed. The case is now ready for decision.
Since the filing of Viacom’s lawsuit, YouTube has not remained idle. It has strengthened its anti-infringement efforts by creating a copyright school for users subject to at least three copyright complaints, requiring them to watch a video and pass a short multiple-choice test. Here’s the video for your enjoyment (and education):
YouTube Copyright School
These efforts were mocked by Viacom in its closing brief:
That the YouTube of today is increasingly effective in filtering copyrighted material and sends infringing users to “copyright school” is of no moment, except perhaps to demonstrate what YouTube could have been doing during the time period that is at issue in this lawsuit, from YouTube’s launch in 2005 to May 2008.
We now await the decision of the appeals court.
Adam G. Garson, Esquire