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Diverse Parties File in Support of DMCA Safe Harbor in the Latest Viacom v. YouTube Appeal

· November 1, 2013

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Today, more briefs were filed in the Second Circuit appeal of the long-running Viacom v. YouTube litigation, from several public interest and technology organizations.  These organizations – YouTube’s amici curiae – include (a) EFF and Public Knowledge; (b) CCIA; (c) several major Internet platforms (eBay, Facebook, IAC, Tumblr, and Yahoo); (d) CEA; (e) National Consumers League, Consumer Action, Human Rights Watch, Access, and Freedom House; (f) more than 30 IP and Internet law professors; (g) National Alliance for Media Art and Culture and Alliance for Community Media; and (h) the Anaheim Ballet, the Learning About Multimedia Project, Inc., and several prominent YouTube users.

Previous briefs in this round have been helpfully collected by Michael Barclay at IPDuck here.

Viacom, who sued YouTube back in 2007, maintains that YouTube should not receive the benefits of the DMCA’s “notice and takedown” safe harbor, despite having satisfied that statute’s requirements, an argument that the Second Circuit was not persuaded by when this case was last in this court a few years ago.  In addition to disputing Viacom’s interpretation of the DMCA, YouTube’s amici discuss the importance of the safe harbor and the platforms it has enabled.

The DMCA represents a complex and careful bargain that provides both content owners and Internet service providers with benefits—and both with burdens.  Congress carefully crafted this safe harbor to encourage innovation and limit liability.  As CCIA’s brief explained:

Congress could not have intended to protect service providers from secondary liability for user infringement, only to subject them to millions of dollars in legal fees spent on protracted litigation over that very protection.  A safe harbor that is merely an invitation to years of costly litigation is no safe harbor at all.  Given Viacom’s single-minded insistence on monitoring and filtering, which flies in the face of express language in the DMCA, and given that Viacom itself bemoans the interminability of its own litigation, Viacom’s intended message is clear:  the DMCA safe harbor notwithstanding, new startups wishing to avoid years of litigation purgatory must either monitor third party content and install filtering apparatuses, which few can afford, or pay a license to the entertainment industry.  To avoid giving credence to this message and casting a pall over an increasingly important sector of the U.S. economy, this litigation must be brought to an end.

CCIA’s brief points out that venture capitalists being deterred from investing in innovative startups due to the potential of being sued is not just a threat, but a reality.  For example, Veoh, an online video service that was featured in my post on 15 technologies that have been sued in the last 15 years, was sued, and their investors were later added to the case.  Even though Veoh, and their investors, ultimately prevailed in court, years of costly litigation bankrupted the company.  The brief also disputes one of Viacom’s more peculiar arguments: that it doesn’t have to show it ever gave notice about YouTube content is it suing over — an interpretation that seems to overlook that “notice and takedown” begins with notice.

If the Second Circuit affirms the district court ruling, it should put this litigation to an end.  More importantly, an affirmance would make it clear that services who comply with the burdens of the DMCA will receive its protections.

The Second Circuit will hear oral argument on the briefs early next year, or potentially as early as next month.

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