Google staves off $1 billion Viacom copyright suit…for now

In 2007, Viacom filed a $1 billion lawsuit alleging Google is liable for the intentional infringement of thousands of copyrighted works on YouTube. On Wednesday, U.S. District Court (SDNY) Judge Louis Stanton granted summary judgment in favor of Google.

Viacom argued the search company had actual knowledge of infringing activity on YouTube or was generally ‘aware of facts and circumstances from which infringing activity’ could be inferred. In either case, it claimed that Google failed to act expeditiously to stop it.

Judge Stanton disagreed, cautious not to contravene the legislative intent behind the Digital Millennium Copyright Act (DMCA). The court noted that when Google was apprised of infringing material via DMCA takedown notices, it acted swiftly to remove the offending videos:

[W]hen Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

Yep — a deluge of notices, most of which were removed within 24 hours — hardly a sluggish response.

The court was equally unwilling to submit to Viacom’s claim of general knowledge of infringement, noting:

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

The DMCA safe harbor does not require proactive monitoring for infringement, instead it places the burden on copyright owners to notify the service provider — clearly not the preferred method of enforcement of Viacom and its ilk, surmising that Google “had the right and ability to control [infringing] activity” — to which the court opined:

DMCA [...] establishment of a safe harbor is clear and practical: if a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.

I suspect Viacom will immediately appeal, but I don’t foresee the Second Circuit Court of Appeals emasculating the DMCA safe harbor either.

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