The Congressional deal holds
News today that Judge Stanton (SDNY) has granted YouTube’s motion for summary judgment in Viacom v. YouTube should not be all that surprising. In the DMCA, the burden of identifying infringing files was clearly placed on the copyright owner in exchange for a commitment by platform providers to take materials down once they received notice. That was the deal. If those platform providers wanted to stay like little boats safely inside the harbor of protection from liability, they had to take files down. But they didn’t have to affirmatively hunt for infringing items.
The protection of that safe harbor, on the other hand, is only available for providers who don’t have actual knowledge of the infringing character of the material AND who aren’t “aware of facts or circumstances from which infringing activity is apparent.” The pilot of the boat, in other words, can’t have specific knowledge about specific and identifiable infringements.
Viacom had attempted to persuade the court that the protection of the safe harbor can be taken away if the platform has some general awareness that there are infringements. But Judge Stanton didn’t buy that argument. As he says, if that were true it would undermine the entire “structure and operation of the DMCA.” The whole point is that the burden of affirmative policing rests with the copyright owner. No platform could figure out on its own whether a particular use is infringing or is subject to some license or fair use protection, and it shouldn’t be subject to such a burden based on smoky, generalized awareness of bad behavior.
To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.
That was the deal. It’s working - perhaps too well, because counter-notices are rare. But it’s working, and this court is unwilling to shift the burden back on service providers without Congressional authority.
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