Viacom Argues on Appeal that YouTube’s DMCA Duty Goes Beyond Takedown Notices
Last week, the U.S. Court of Appeals for the Second Circuit heard oral arguments on whether the safe harbor provisions under the Digital Millennium Copyright Act (“DMCA”) excuse YouTube from liabilities for hosting unlicensed copyrighted material on its website. The case arose when Viacom and other media producers (“Viacom”) brought a copyright infringement complaint against YouTube, alleging that YouTube had not fulfilled its duty to remove unlicensed, copyrighted material from its website.
Viacom’s principal argument was that under DMCA § 512(c)(1)(A)(ii), YouTube loses its safe harbor from copyright infringement liability if it doesn’t generally remove content it knows to be unlicensed and copyrighted but for which it hasn’t received a DMCA takedown notice. A U.S. district court disagreed and awarded summary judgment to YouTube, holding instead that YouTube’s duty to remove unlicensed, copyrighted content from its website is not a general one. The district court held the duty only applies when a DMCA takedown notice or other facts alert YouTube to specific instances of infringement.
The case involves other issues and other provisions of the DMCA, but the focus is really on how to interpret DMCA § 512(c)(1)(A)(ii). This provision says that to qualify for a copyright infringement safe harbor, a service provider such as YouTube must remove copyrighted material not only when it receives a takedown notice but also when it’s aware of “facts or circumstances from which infringing activity is apparent.” Even though the district court worked to determine whether this meant YouTube’s duty to remove copyrighted material was general or only in specific instances, something else caught my eye in the reports of what the parties said at appellate argument. According to the New York Law Journal, counsel for YouTube made a distinction between knowing that content was copyrighted and knowing that it infringed upon a copyright.
Implicit in this is the idea that YouTube might know some of its content is unlicensed and copyrighted, but the content might not infringe on the copyright because of fair use (e.g., criticism, teaching, research, and parody). The language of the provision supports this, as it only says YouTube must act when it knows “infringing activity is apparent.”
The reason why this caught my eye is because it specifies but does not change the principal disagreement between the parties to the case: who has the duty to find the videos on YouTube that have unlicensed, copyrighted content and aren’t protected under fair use? Both parties are trying to avoid it because of its scale. When YouTube’s users upload untold numbers of videos everyday, finding which ones have copyright-infringing content is like a game of “Whack-A-Mole.” By narrowing the issue to only infringing content, YouTube is emphasizing the depth of the analysis Viacom would have it take each time a new video pops up.
This is a huge burden to meet, but I think it could still fall on YouTube. Viacom argued on appeal that it wants its DMCA takedown notices to make YouTube remove not only videos it specifies as copyright infringing but also all the other copies of it that continue to pop up. If the language of § 512(c)(1)(A)(ii) says YouTube must remove material when it’s aware of “facts or circumstances from which infringing activity is apparent,” wouldn’t that occur when Viacom gives it DMCA takedown notices for other instances of infringement? I could see YouTube successfully arguing at trial that just because one video infringes on a copyright, it doesn’t necessarily mean another video with the same copyrighted material is also infringing. That would depend on the similarities of the two videos. If the other video were identical to the first, then of course its infringing upon a copyright would be apparent. On the other hand, maybe the copyrighted material appears in the second video in the context of a school lesson or satire. Whose burden would it be to determine if the second video uses the copyright material in fair use? In many cases, it wouldn’t be YouTube because the DMCA provision says YouTube only has to act when it’s “apparent,” i.e., clear that the content infringes upon a copyright.
Nevertheless, last week’s appellate arguments were only for overturning a summary judgment. Because YouTube could have a duty to remove videos if they are copies of others for which it has received DMCA takedown notices, a summary judgment was improper. There is room for the facts of the case to determine the extent of YouTube’s duties, and the district court awarding a summary judgment didn’t give Viacom the opportunity to point them out.