Whack-a-Mole Reigns Supreme

Dear Readers:

Welcome to my blog. I figure since I’ve got one now, I’d better put something up while ruminating on what to post next. So, below is an article I originally wrote back in June when the Viacom v. YouTube decision originally came down.


In June, Louis L. Stanton, the federal judge hearing a copyright infringement lawsuit brought by Viacom and other “content owners” against YouTube, issued a 30-page opinion in YouTube’s favor.  This decision will affect anyone who makes a living by creating or marketing any kind original, creative work, like TV shows, movies and music.

More than two years and many millions of legal fees ago, Viacom, along with Paramount, BET, the English Premier (soccer) league and some music publishers, sued YouTube and Google, which had paid more than $1.6 billion for YouTube and the privilege of being sued.

Unless you’ve been living in one of the few caves without broadband for the past few years, you know that YouTube is the repository of millions of videos of varying degrees of quality, put up there by ordinary folks like you and me.  And many of the more popular videos are excerpts of TV shows like “The Daily Show” or are amateur videos that include music from their favorite bands.    Sounds like a clear case of copyright infringement, right?  Well, that’s where a fairly arcane section of the Copyright Act comes in.  Section 512(c) provides the YouTubes of the world with a “safe harbor” against copyright infringement claims if they follow certain procedures.

And what are these procedures?  Basically, an entity such as YouTube that has “information residing on systems or networks at the direction of users” has to have a “designated agent”, like an e-mail address where copyright owners can send a notice that the site has posted infringing material.  If the site promptly takes down infringing material after receiving a notice of infringement in accordance with the statute, then it won’t be liable for copyright infringement.

As framed by Judge Stanton, whether YouTube can dock in this “safe harbor” depends upon whether the statute requires only “a general awareness that there are infringements” or whether the statute requires “actual or constructive knowledge of specific and identifiable infringements of individual items.”  Judge Stanton concluded that the latter approach is mandated by the Copyright Act.

In theory, this isn’t necessarily bad. After all, we don’t want our pipeline provider, whether it’s for phone, TV or internet, to have to monitor whether everything that flows through the pipe is legit.  However, this approach makes less sense when dealing with a company whose business model is precisely to make money off of other people’s stuff.

What does this mean? Well, essentially, YouTube (and Google) now has a “get out of jail free” card to continue to make money off of the backs of people who create TV shows, movies and music. Under this interpretation, it doesn’t matter that the good folks at Google know that there’s oodles of infringing content on YouTube.  They can simply sit back and wait for content owners to send notices about specific works, take down the specific infringing videos and not worry about paying for other people’s creative efforts.

And while Sumner Redstone might not be the most sympathetic plaintiff, it means that ordinary folks and small businesses have to spend time and resources they don’t have to scour the internet and send individual notices of infringement.  So, at least as long as Judge Stanton’s decision stands, and it’ll be appealed, creators don’t get paid and “whack a mole” reigns supreme.

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