YouTube Protected by Safe Harbor The US website YouTube, well-known for its UGC "video posting" facility, has been granted summary judgment that it qualifies for the "Safe Harbor" protection under US law. In Viacom and the Football Association Premier League (and others) v YouTube Inc and Google Inc [2010] 07 Civ 2103 and 3582 (reported 23 June 2010), a US District Court in New York held that YouTube is entitled to the "Safe Harbor" protection of the US' Digital Millenium Copyright Act and is therefore not vulnerable to claims of copyright infringement from several film and TV companies and the UK's Premier League - including claims for "inducement". The film and TV companies and the Football Association had sued YouTube in 2007 for copyright infringement of those rightsholders' content. Whilst it was not denied that YouTube offered infringing content on its site, YouTube relied on the Safe Harbor defence available to a service provider that has no "actual knowledge" of infringements on its system or network - provided that it also responds to "Take Down Notices" and receives no direct "financial benefit" from the infringing activities within its control. The rightsholders claimed that YouTube was not entitled to protection because it had "actual knowledge" and was "aware of the facts and circumstances from which infringing activity was apparent but failed to act" and, most interestingly, YouTube was "not only generally aware of, but welcomed, copyright-infringing material being placed on their website". The court found that YouTube had followed the Take Down Notice regime (the rightsholders admitted that all the videos cited in court had been removed) and noted that "mere knowledge of prevalence of such activity in general is not enough" to penetrate the defence. The court held that "knowledge of a generalised practice of infringement" or a tendency for "users to post infringing materials" does not impose a duty on a service provider to then "discover which of their users' postings infringe a copyright". In contrast with last month's judgment in which LimeWire was found liable for "inducement" of copyright infringement, this Court found that the infringing works on YouTube "may be a small fraction of the millions of works posted" (whilst the LimeWire court seemed to believe that a large majority of works available on that service were unlicensed). This court seemed to praise YouTube for swift take downs, noting that the site had "removed virtually all" of the 100,000 videos cited in a single Viacom Take Down Notice "by the next business day". The court cited three possible worries for YouTube: its "three-strikes repeat-infringer policy", its use of the AudibleMagic "fingerprinting tool" for automatic removal of infringing content, and its policy of removing only specific clips identified in a Take Down Notice rather than other clips infringing the same works); but found that these "minor arguments do not singly or cumulatively affect YouTube's safe harbour coverage". Unfortunately the court did not say whether this was a close call or whether any other factors made these three activities in this case fall on the safe side and we are therefore none the wiser as to which specific activities a site can carry on without fear of giving itself "actual knowledge" and thereby losing its Safe Harbor protection. Interestingly, this court repeated a statement that "the difference between YouTube's behaviour and Grokster's is staggering" and "it is not remotely the case that YouTube exists solely to provide facilities for infringement", whilst the judge in LimeWire (also from the New York Southern District) also stated in an aside that "Google's activities do not meet the 'inducement' test explained in Grokster because Google has not promoted the use of its search engine specifically to infringe copyrights" - suggesting that there may be considerable sympathy for YouTube amongst US judges. This case, in the wake of Newzbin (see here) and LimeWire (see here) and the Digital Economy Act, is a blow for the beleaguered content industries - and may also serve to undermine the recent Take Down Notice offensive against YouTube mounted by the BPI and the IFPI - but an appeal is likely and some wider "policy issues" may figure more prominently in a higher court. Nevertheless, though this case forms no precedent in the UK, it seems unlikely that this victory by the world's biggest content-hosting (and surely the world's biggest content-infringing) website could be without international effect. The full text of the judgment may be accessed via: www.google.com/press/pdf/msj_decision.pdf.
Article by Tom Frederikse