Viacom v. YouTube Settlement Not the End of Needed Safe Harbor, Section 512 Improvements

Safe-harbor provisions are actually narrowing in scope because of private contracts, said Bambauer. “Given that the two corporations have more to gain in ongoing partnerships, it likely made sense to call off the legal dogs,” said Casey Rae, Future of Music Coalition interim executive director. He said the settlement probably won’t affect debates around safe-harbor laws and Section 512.

"This settlement reflects the growing collaborative dialogue between our two companies on important opportunities,” said Google and Viacom jointly.

The “final shoe” of Viacom’s arguments that “were already losing” has dropped, said Center for Democracy & Technology General Counsel David Sohn. Viacom was trying to narrow the scope of safe-harbor provisions in a way that would have made them “largely inapplicable,” he said. Viacom was arguing that if companies like YouTube had “generalized knowledge” of copyright infringement, then they would not qualify for safe harbor, said Sohn. Any significant user-generated content (UGC) platform knows that “some users will post infringing” content sometimes, he said. “If generalized knowledge were enough” to disqualify UGCs from safe harbor, almost “any site could be disqualified,” he said. The settlement is a “final confirmation that Viacom is not going to be able to reverse or undermine” a number of court victories by YouTube that “already represented a big win for the Internet and for Web 2.0,” said Sohn.

In 2012, two appellate judges sided with Viacom and remanded the case to U.S. District Judge Louis Stanton in New York. Last year, Stanton granted Google’s motion for summary judgment and dismissed Viacom’s case, and Viacom appealed once more (WID April 22 p1). Tech companies and think tanks filed friend-of-the-court briefs on behalf of YouTube in the most recent round of litigation after Viacom’s appeal, including Facebook, Yahoo, the Electronic Frontier Foundation and Public Knowledge (WID Nov 6 p1).

The settlement is a “welcome development for the creative community, because it signals that cooperative solutions to long standing problems facing artists, creators and innovators on line might now be possible,” said Sandra Aistars, Copyright Alliance CEO, in a statement. “Nevertheless, independent creators and small businesses still face enormous challenges tracking down and removing or licensing the use of their creative works on line."

Ending Viacom v. YouTube is “good news for companies that rely on the DMCA safe harbors,” because “they don’t have a duty to monitor for infringement,” said Arizona’s Bambauer. It also “limits the scope of ‘red flag’ knowledge that triggers the requirement to act,” he said. “However, the role of the safe harbors is increasingly limited.” Google and other private companies can “strike private bargains via contract with copyright owners to set up streamlined notice-and-takedown systems that often afford users fewer protections than the DMCA does,” said Bambauer. “Those deals operate in the shadow of copyright law, so decisions like the Second Circuit one influence their contours, but they don’t give users a voice.”

The settlement is “unlikely to have much of an effect on the current debates about safe harbor for online companies or their notice-and-takedown obligations,” said the Future of Music’s Rae. Even with “plenty of points of contention between sides,” it’s “becoming increasingly clear that platforms like YouTube are a major part of how the content industries do business,” he said.

Creators “still don’t have the tools necessary to force UGC sites and deliberate pirate sites to respect their creative works,” said Aistars. YouTube’s improvement and filtering of copyrighted content, beginning in 2008, has made the notice-and-takedown provision “more effective for certain users and works,” she said: UGCs should “continue” to “expand to other sites and all types of works and creators.”