‘Climate of Uncertainty’ Feared if Viacom Wins YouTube Case

Copyright industries’ view of service providers’ obligations would gut the Digital Millennium Copyright Act and return digital service to the “climate of uncertainty” that prevailed before the 1998 law, several groups said Tuesday in a friend-of-the-court filing in the Viacom-YouTube case. Content owners’ claim that “red flag” knowledge of infringement bars use of the safe harbor goes against the DMCA’s careful phrasing, groups said. The companies have filed motions for summary judgment (CD March 19 p8).

If Viacom wins, “the profusion of online services that have benefited the public (as well as future ventures) would be imperiled by the threat of multi-billion dollar statutory damages awards,” said the Center for Democracy & Technology, Computer & Communications Industry Association, Electronic Frontier Foundation, Home Recording Rights Coalition, Internet Archive, NetCoalition, Public Knowledge, American Library Association and research-library groups. Yet as YouTube’s maturation has showed, content owners can get much of what they want voluntarily in the form of technologies to block infringement, they said.

The DMCA’s legislative history shows lawmakers were concerned that e-commerce wouldn’t grow without legal certainty, a view backed by network operators fearful that they would be held responsible for infringing content in a glut of data, the filing said. The flip side was that networks would limit their users’ freedom of expression to diminish their own liability, groups said. The four prongs of the safe harbor test -- registering a copyright agent, adopting a notice-and-takedown system, accommodating “standard technical measures” and using a repeat-infringer termination policy -- replaced the “doctrinal ambiguities” that prevailed before the DMCA.

But by arguing the safe harbors don’t apply to secondary liability claims, Viacom and other plaintiffs would render them “superfluous,” the groups said. The provision setting forth the “knowledge disqualifier,” as it’s casually known, requires a service provider to have knowledge of “the material or an activity using the material,” which “necessarily presupposes” knowledge of particular content. Content owners can’t substitute the word “any” for “the,” groups said. So red-flag knowledge that infringement is taking place depends on “particularized knowledge regarding what material should be removed.” General knowledge of infringement as a trigger for losing the safe harbor would make the takedown prong meaningless, groups said. “A copyright owner could simply commission a survey” on the incidence of infringement on a service, they said. It’s also contrary to the examples of red flags in the legislative history, which listed mitigating factors a service provider might consider, such as whether a celebrity photograph was still in copyright or had been licensed by a suspected “pirate” site where it was displayed. The groups cited now-bankrupt video site Veoh’s victory over Universal Music Group in their support.

The safe harbor requirement that a site not “control and benefit” financially from infringement means that providers must not be able to control particular infringements, not just that they have a “general ability” to control their servers, the groups said. Congress expressly rejected the theory that a financial benefit could come from receiving a “one-time set-up fee and flat, periodic payments for service,” and it can be reasonably assumed that YouTube’s advertising similarly supports many noninfringing videos and an “overall legitimate business model.” Simply because YouTube could have done “more human review, more keyword searching, more community flagging, and more digital fingerprinting,” that doesn’t mean those steps would have satisfied content owners, the groups said.

Reading Section 512 of the DMCA to protect only “passive” providers of server storage would not only leave out user-generated content sites but also business models common in 1998, groups said. It would have excluded Yahoo’s message boards and AOL’s bulletin board service, first sued by music publishers in 1993 on infringement allegations related to users’ song uploads. “They are all examples of ’storage at the direction of a user'” that’s protected by the DMCA, groups said. The growth of user-generated sites can be credited directly to the legal certainty of Section 512, the filing said. “These activities would be difficult for a small nonprofit” such as the Internet Archive to manage,” it said. Without the section, cloud storage itself would be threatened, and only “plain vanilla” Web hosting would be protected.

Safe-harbor protections are especially critical for small organizations that don’t have the financial resources of Google, Amazon, eBay or Yahoo to adopt “state of the art filtering and monitoring technologies” that content owners demand, the groups said. They have often played an important role in free expression, from amateur video documenting Asian tsunamis on the Internet Archive to Twitter’s role in political protest in Iran. The compromise under Section 512 also prods service providers to protect copyright as a condition of licensing “big-budget entertainment content,” as YouTube has done. Its filtering apparently was so precise that Viacom doesn’t contend that any clips after May 2008 are infringements, groups said.