YouTube finds shelter in the DMCA §512(c) Safe Harbor

In granting summary judgment for YouTube in Viacom v. YouTube, Judge Louis Stanton found that YouTube complied with the notice and takedown requirements set out in the DMCA §512(c) Safe Harbor provision. By promptly taking down infringing works upon notice by the copyright owners, YouTube acted as service provider is required to in order to qualify for §512(c) safe harbor protection.
A general knowledge that users may be using the site to upload copyrighted material does not itself lead to liability under the safe harbor. “General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.” After all, how is a host supposed to affirmatively distinguish 3rd party works uploaded with consent from ones uploaded as infringements or others uploaded as fair use without notice from the copyright owner?
The ruling distinguishes YouTube from P2P services like Grokster and Limewire: YouTube was found to be prompt at complying with DMCA notices by promptly taking down infringing works.
Kent Walker, Vice President and General Counsel, Google, YouTube Blog: YouTube wins case against Viacom: “This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.”
Eric Goldman, Technology & Marketing Law Blog: YouTube Gets Decisive Win in Viacom/FAPL Case: “Now, the case is also noteworthy because it hands YouTube a clean and decisive win on the DMCA 512(c) safe harbor. The ruling basically says that the current industry standard practices of notice-and-takedown for user-caused copyright infringement satisfies the safe harbor. Although this seems like an uncontroversial result when stated like that, the reality is that copyright owners have repeatedly angled to get a better deal than Congress gave them in 512. This case will squelch many of those copyright owner requests to force service providers to go beyond current industry-standard practices. Of course, we have to see how the opinion fares on appeal.”
Susan Crawford, 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.”
Randy Picker,, Viacom v. YouTube: When Is It Storage? When Is It a Public Performance?: “The issue in the case focuses on the scope of the Digital Millennium Copyright Act’s safe harbor for online service providers set forth in section 512 of the copyright statute. Section 512 is pretty chunky but most of the court’s analysis focuses on section 512(c). That subsection insulates service providers from liability ‘for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider’ if the service provider can meet a three-part standard set forth in that subsection.”
Evan Brown, Internet Cases, YouTube victorious in copyright case brought by Viacom: “Simply stated, the DMCA protects online service providers from liability for copyright infringement arising from content uploaded by end users if a number of conditions are met. Among those conditions are that the service provider ‘not have actual knowledge that the material or an activity using the material on the system or network is infringing,’ or in the absence of such actual knowledge, ‘is not aware of facts or circumstances from which infringing activity is apparent.’”
David Kravets, Wired Google Wins Viacom Copyright Lawsuit, “‘Today’s decision isn’t just about YouTube,’ said Center for Democracy & Technology lawyer David Sohn. ‘Without this decision, user generated content would dry up and the internet would cease to be a participatory medium.'”
James Poniewozik, Time Tuned In, YouTube vs. Viacom: Everybody Wins?: “TV networks discovered that the best response to people posting video online was not lawsuits, but providing what their customers obviously wanted, and providing it better. They may not have solved the problem of monetizing online video, though they’re getting closer, but what they’re doing now beats playing whack-a-mole with uploaders.”
Farhad Majoo, Slate, The court was right to side with YouTube over Viacom: “Stanton’s ruling resolves a long-standing argument between Web companies and entertainment companies on the question of how to police the Web. The debate boils down to this: Web companies want most content that people post online to be presumed innocent; if a copyright owner comes along and says that a certain video is illegal, then a Web site must take it down, but otherwise it stays up. Entertainment companies have been pushing courts to impose the opposite standard: Much of what people post online ought to be considered infringing, they argue, and Web companies should take steps to prove that the content is legitimate before they let it stay online.”
Miguel Helft, The New York Times, Judge Sides With Google in Viacom Suit Over Videos: “The ruling in the closely watched case could have major implications for the scores of Internet sites, like YouTube and Facebook, that are largely built with content uploaded by their users.”
The Daily Show’s Demetri Martin reports on the filing in 2007.
6/27/10: Ben Sheffner, Copyrights and Campaigns, Viacom v. YouTube: A disappointing decision, but how important? “Put aside, for a moment, whatever you may think of Judge Stanton’s ultimate holding absolving YouTube of copyright infringement. Purely as a matter of judicial crafting and analysis, I found the court’s order to be extremely cursory. While I certainly don’t equate quality with quantity, this opinion was just too damn short to do justice to the complex, heavily-litigated issues in the case.”

Blawg Review #269

Blawg Review’s editor invited me to host today’s Blawg Review #269 because today, June 21 is not only the summer solstice, but also World Music Day and here in New York City, Make Music New York, where New York will host hundreds of live music performances, from street performers to major concerts.
So break out your vuvuzela and make your own kind of music and let’s get down to reviewing some blawgs:
Music related links:
Did you know that vuvuzela isn’t merely the most annoying sound on Earth, but also a trademark? Vuvuzela, the trademark
And if you haven’t had enough vuvuzela watching the World Cup, you can read this blog post with vuvuzela accompaniment.
IP Tango looks at the central, non-vuvuzela related musical issue with the FIFA World Cup: Waka waka chorus – who is the author?
The official theme of the 2010 South African World Cup is under debate. The singer and songwriter, Wilfrido Vargas, accused Shakira of plagiarism for the use of the chorus of his song titled “ el negro no puede’ in the ‘wake waka’ song – the official theme of the 2010 World Cup.”
Ben Sheffner, Copyrights & Campaigns: It’s official: Don Henley wins summary judgment over Chuck DeVore on copyright claims: “It’s been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley’s copyright and Lanham Act claims regarding DeVore’s videos that used Henley’s songs to mock Boxer and President Obama, soundly rejecting DeVore’s fair use defense.”
Copyright Litigation Blog: Synchronizing Art to a Sound Recording: Do Financial Incentives Demotivate Creativity and Problem Solving?, “Not only is Dan Pink’s video by RSA Animate thought-provoking and relevant to whether or not money stimulates creative activity. It is also relevant to the core purpose of the Copyright Act and arguments raised in defense of draconian copyright: whether or if financial incentives stimulate creativity. Studies by the Federal Reserve and MIT raise the question of whether financial incentives actually decrease creativity.”
At Techdirt, Mike Masnick asks, Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians? “That’s a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I’m really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation.”
North of the border, Michael Geist looks at how American-style astroturfing is coming to the debate of copyright legislation in Canada, The Copyright Lobby’s Astroturf Campaign in Support of C-32 “The copyright lobby, almost certainly led by the Canadian Recording Industry Association, has launched a major astroturf campaign in which it hopes to enlist company employees to register their support for Bill C-32 and to criticize articles or comments that take issue with elements of the proposed legislation. The effort, which even includes paid placement of headlines on, is still shrouded in some secrecy.” Later: Copyright Lobby Astroturf Site Adds Mandatory, Uneditable Letter to MPs
At Law is Cool, Pulat Yunusov looks at the Stakes of Copyright Reform in Canada, “Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.”
Music Row Law’s Barry Neil Shrum looks at a P2P decision from here in New York: The Limewire Ruling: New King of the Hill for Illegal Downloading Decisions “The U. S. District Court for the Southern District of New York ruled against LimeWire and its parent company, Lime Group, finding them liable for inducement of copyright infringement based on the use of their service by subscribers.”
Public Knowledge is proposing a Copyright Reform Act and discussing their proposals on: Fair Use and Circumvention, with three more parts coming soon.
Ad you know, Justin Bieber is the biggest name in pop music today. Justin Bieber, Esq. Has Name To Make ‘U Smile’ (I assume that’s a reference the more pop-centric blawg readers will get.) “The recent graduate of Widener Law School was just embarking on a marketing campaign to drum up work when Justin Bieber, the Canadian teen heartthrob, became a singing sensation.” Bieber also talked with 92.3 FM.
Is Supreme Court nominee Elena Kagan too pro-Hollywood or too anti-copyright? Chris Castle: Why Artists Should Worry About Elena Kagan’s Supreme Court Appointment. Ben Sheffner: Kagan confirms: I represented the RIAA.
Play Me, I’m Yours: New York City 2010 “Touring internationally since 2008, “Play Me, I’m Yours” is an artwork by artist Luke Jerram. From 21st June – 5th July, 60 upright pianos will be distributed across New York City by Sing for Hope. Located in public parks, streets and plazas the pianos will be available for any member of the public to play and engage with.”
Since today was Father’s Day, I spent more of it playing golf with my father than reviewing the web, but fortunately Blawg Review contributors sent me a link to (the National Resposible Fatherhood Clearinghouse) with President Obama’s Father’s Day message. The Library of Congress shares some songs for Father’s Day
So here are the rest of today’s blawg review, as free jazz improv:
Did Perez Hilton violate federal child porn laws? “Child pornography and child exploitation have always raised strong public emotions. Regardless of the necessity for new laws, this
political football is carried by the Left and the Right alike, as nobody can stand up against stronger child exploitation laws and emerge politically unscathed.”
Evan Brown, Internet Cases. Illinois court sets standard for unmasking anonymous commenters “The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.”
Felix Salmon, Interchange and free checking “Why do most people hate their bank? Because their relationship is based on the lie of “free checking”, and a relationship based on a lie is always going to be a dysfunctional relationship. Checking is never free, but in recent years banks have been able to conjure the illusion of free through a system of regressive cross-subsidies, where the poor pay massive overdraft fees and thereby allow the rich to pay nothing.”
IP Watchdog No $5.4 Trillion Bounty for False Patent Marking Bounty Hunter “Bounty hunters make their living by capturing fugitives from justice for a monetary reward (bounty). A more recent, modern day version of the bounty hunter is one who pursues patentees for false patent marking under 35 U.S.C. § 292. The recent Federal Circuit case of Forest Group, Inc. v. Bon Tool Co. has made such false patent marking bounty hunting lucrative by saying that each falsely marked item is an “offense” under 35 U.S.C. § 292, and thus subject to a penalty of “up to $500,” with the bounty hunter getting half of the awarded penalty and the federal government the other half. As a result, a rash of such cases (upwards of at least 100 at the moment) have been filed by such modern day bounty hunters as qui tam actions against various patentees alleged to be falsely marking their products.”
Frank Pasquale, at Concurring Opinions, Just What the Oil Industry Needs: More Trade Secrecy, “I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.”
The public and private sectors are going Hollywood to find solutions to the oil spill in the Gulf of Mexico. Last week, Congress heard testimony about Kevin Costner’s Ocean Therapy Solutions.
Illinois court sets standard for unmasking anonymous commenters
June 16 was Bloomsday (the day of James Joyce’s masterwork Ulysses) Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce’s Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).
A Fool in the Forest, Bialystock and Bloomsday (Nighttown is the Right Town) Bloomsday is again upon us, honoring that real-yet-fictive day, June 16, 1904, on which Mister Leopold Bloom and Mister Stephen Dedalus made their joint and several legendary peregrinations round and about Dublin, its vicinity and its vicissitudes, all as memorialized by Mister James Joyce in his non-iPad-compliant misterwork, Ulysses.
Simon Fodden, Slaw, Rats, I missed Bloomsday, “an event I like to note here on Slaw. It happened last Wednesday, which was June 16, the same date on which, in 1904, Leopold Bloom wandered through Dublin as Joyce’s Ulysses.”
Sexy banker Debrahlee Lorenzana may be a prototypical Rogue Client It happens to every lawyer at some point: You agree to represent a client and realize later it was a big mistake. The client goes rogue on you. You simply didn’t get the full story during intake.
Kashmir Hill, Confessions Of An Online Stalker “Without ever talking to Noah Brier or anyone who knows him, I could tell you the following: Noah’s family moved into a $353,000 home in the wooded New York suburb of Norwalk, Connecticut, when he was three. The house is now worth over a half million dollars. He was a checkers champion in third grade and fourth grade at Columbus Elementary School (and a runner-up in second grade); it took eleven minutes for his mother to drive him to elementary school.”
Matt McCusker, Deliberations, No Basis For Biases: How Demographics Fool Even The Best Lawyers Let’s face it, we all stereotype. We all make assumptions about others based on visual information alone. These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.
A Public Defender, Life without possibility of redemption “I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.”
David Berkowitz shares the advice he’s learned from speaking in public and giving presentations: Over 100 Lessons from over 100 Events
Mashup of the day: Lord of the Vuvuzela
I’m off to watch the finale to David Simon and Eric Overmeyer’s musically excellent show Treme on HBO, and then read Alan Sepinwall’s review and interview with David Simon
Blawg Review has information about next week’s host, and
instructions how to get your blawg posts reviewed in upcoming issues.

Suit of Anarchy

Hells Angel meets with network, pitches television show about motorcycle gang. Network passes. Years later, network picks up a show about a motorcycle gang. Lawsuit ensues.
Matthew Belloni, THR, Esq, Ex-Hells Angel Claims FX Stole ‘Sons Of Anarchy’
Chuck Zito, who describes himself as the former leader of the New York City Hells Angel chapter and a “radio, television and film personality” (we’re not going to argue with him), filed a breach of implied contract lawsuit today claiming that the hit FX drama “Sons of Anarchy” was based on his ideas.”
The complaint: Zito v. FX Networks
What makes this story interesting is Sons of Anarchy creator and executive producer Kurt Sutter’s comments about creativity, pitches and the idea/expression dichotomy: DOUCHEBAGGERY IS THE GREATEST FORM OF FLATTERY… AGAIN “HAVING THE FUCKING IDEA IS NOT THE SHOW. THERE HAVE BEEN DOZENS OF OUTLAW MOTORCYCLE TV DRAMAS PITCHED IN THE LAST TEN YEARS. NONE OF THEM HAS MADE IT TO SERIES, EXCEPT SOA. BECAUSE THEY SUCKED. The same way there were dozens of mob family pitches before the Sopranos and crime scene pitches before CSI.”

Two quick internet policy links

Susan Crawford presented Rethinking Broadband at Personal democracy Forum ’10, which is a brief overview and introduction to the current state of communications policy, the major policy questions and the interests of the various players. A very worthwhile and quick overview:
Aparna Sridhar, Free Press, The Truth About the Third Way: Separating Fact from Fiction in the FCC Reclassification Debate: “While we welcome a lively debate about the best way for the FCC to move forward with implementing the National Broadband Plan, that debate should be informed by the history of communications law and policy in this country and accurate facts about both the FCC’s proposal and the technological and market realities of today’s broadband world. It should not be based on deliberate misdirection and obfuscation. We offer this issue brief to shed light on some of the more obvious misconceptions circulating about the FCC’s proposal.”


I happened to see this item on Above the Law today: It’s Time For Another Round of Tuition Hikes: “The [Brooklyn Law School] Finance Committee has approved the following tuition schedule for the 2010-2011 academic year: Full-Time: 2 & 3F: $46,284”
Forty-six thousand dollars per year? Back when I was a rising 2L, I blogged about the 2003-2004 tuition for Brooklyn Law and its competitors in the NY metro area. Brooklyn was charging us $30,200 per year in tuition and $130 in fees. That’s a 53% increase in the cost of tuition over the last 7 years.
According to the Bureau of Labor Statistics $30,200 in 2003 has the same buying power as $35,781.91 in 2010 — that’s a pretty significant 18% inflation. Yet, Brooklyn Law increased tuition by nearly 3 times the rate of inflation. Are the economic opportunites for a newly-minted JD any better than they were five years ago?