Viacom-YouTube Decision Shows Strength of Copy Infringement Safe Harbor

A federal district court judge's ruling last week in favor of Google's YouTube demonstrates that it can be difficult to hold online service providers liable for copyright infringement for content posted by users.

Viacom had sued YouTube (before it was acquired by Google) for more than $1 billion in damages arising from numerous instances of Viacom television shows or other content made available on the website. Viacom argued that YouTube should be secondarily liable for copyright infringement because executives knew that such conduct was occurring and desired such postings to help drive the growth of YouTube.

The federal Digital Millennium Copyright Act struck a balance to protect both internet service providers ("ISPs") and copyright holders. ISPs generally have a safe harbor for liability from infringing content posted by users so long as: (1) they do not financially benefit directly from the infringing activity; (2) they are not aware of the infringing material or circumstances that would make such material apparent; and (3) they remove (or "take down") purported infringing material with reasonable speed upon receiving notice.

Although the court acknowledged that YouTube management knew some infringement was happening and may have felt the infringing content helped bring contributors or viewers to the website, the judge found that overall YouTube did not have specific knowledge of which uploads constituted copyright infringement and YouTube took down thousands of posts promptly upon receiving notice from Viacom. (YouTube has since taken more aggressive efforts to monitor and police infringing material in the first place.)

Accordingly, unless the ruling is overturned on appeal, it will serve as a powerful precedent to protect diligent ISPs, who generally are easier targets with deeper pockets than the individuals who post infringing content.

Jeremy A. Gibson is an attorney experienced in handling Internet and intellectual property matters, such as the copyright infringement issues noted above. We are available to serve and meet with clients in Chicago and Deerfield and other areas. Contact us for a complimentary consultation with a Chicago business lawyer.