Flurry of Support for YouTube, as Case with Viacom Continues
There has been a flurry of support for YouTube in the Google unit’s copyright battle with Viacom, filings in the docket show. Those on both sides Viacom v. YouTube said in interviews that the case partly revolves around Section 512 of the Digital Millennium Copyright Act. Backers of Viacom said they see the issue of inducement to copyright theft linked with the right to control such theft, while a copyright advocate who opposes the company’s position said a safe harbor applies. An unaligned law professor said the case shows the 1998 law is outdated.
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The National Consumers League, Consumer Action, Access, Freedom House and Human Rights Watch jointly filed for amicus curiae status on behalf of YouTube (http://bit.ly/HrNW5r). Facebook, eBay, IAC/InterActiveCorp, Tumblr and Yahoo jointly filed amici curiae. (http://bit.ly/HrO9We). The National Alliance for Media Arts and Culture, Alliance for Community Media and Kartemquin Films filed together for amici curiae status(http://bit.ly/16DyMn3). CEA also filed an amicus curiae (http://bit.ly/1b20YkZ) and the Intellectual Property and Internet Law Professors filed an amicus curiae brief(http://bit.ly/HHpAEA). The Electronic Frontier Foundation and Public Knowledge jointly filed a similar request (http://bit.ly/1cC6iyU).
The EFF and PK believe Viacom is conflating the issue of “inducement” with the “right and ability to control” under the DMCA, said their brief (http://bit.ly/1cC6iyU). “This entire case is focusing on the DMCA and whether or not the safe harbors apply to YouTube,” Sherwin Siy, Public Knowledge vice president-legal affairs, told us. “YouTube is one of the premier examples in which the DMCA should apply. What Viacom is doing is looking for ways to nudge YouTube out of that category, out of safe harbors.” It’s “really all about how that one statute, how Section 512 gets interpreted,” said Siy. “The way they're trying to do it, is basically to conflate the right and ability to control requirement of Section 512 of the safe harbor provision with part of the test for secondary liability, which is the right and ability to control infringements."
Viacom General Counsel Mike Fricklas said that “it’s not us that are trying to connect the two, it’s the court.” The 2nd Circuit “put it together in just the right way,” he said. The 2nd Circuit negated a ruling last year that sent the case back to trial (CD April 6/2012 p2).
An unaligned-in-the-case law professor believes the DMCA is too “antiquated” to be used in this here. Mark Schultz, senior scholar at the Center for the Protection of Intellectual Property at George Mason University School of Law, said the DMCA is too “antiquated” to be used in this case. The DMCA is “really a 1990’s solution for a problem that has long since exceeded its scope to deal with it,” he said. “The question is, does the DMCA provide complete blanket liability provided you take down all the files or does the so-called red flag provision actually mean something? And if it means something, if there are circumstances that constitute so called red flags, then the red flag knowledge has to mean something, has to defeat the safe harbor and the question is what constitutes red flag knowledge. I'm not sure that I've heard EFF or Public Knowledge or any folks on the side of YouTube concede to any state of knowledge that would give any meaning to the red-flag provision.” Schultz was referring to Section 512 (c)(1)(A)(ii).
Amicus curiae have been filed on behalf of Viacom by the MPAA (http://bit.ly/1hha6HZ), RIAA (http://bit.ly/HuUIYe), the Independent Film & Television Alliance (http://bit.ly/1hha6HZ) and others. The case is docket no. 13-1720-CV. (jmcknight@warren-news.com)