The sound you heard today was a collective sigh of relief from entrepreneurs and corporate executives across the globe that have built business models around user-generated content. Google has, at least for the moment, successfully defended the “YouTube model” against claims that it promotes copyright infringement. Google’s defense was based primarily on the Digital Millennium Copyright Act (the “DMCA”), which protects online service providers from liability for copyright infringement based on content uploaded by users as long as they meet the conditions for the statutory “safe harbor”.
You are probably familiar with the concept of a “take-down notice”, a procedure by which copyright holders such as record companies, television networks and movie studies notify a website that content they are hosting is infringing on rights they own. Google was clearly in compliance with the procedural requirements of the DMCA safe-harbor in that it regularly and promptly took down content when it received these notices.
The question the judge had to answer was whether Google met the requirement that it “not have actual knowledge that the material or an activity using the material on the system or network is infringing,” or in the absence of such actual knowledge, was “not aware of facts or circumstances from which infringing activity is apparent.” There was some pretty damning evidence presented that Google knew, and was even concerned, that YouTube users often uploaded infringing content. The judge, however, dismissed Viacom’s case on summary judgment, holding that Google met the conditions for the DMCA safe harbor. The judge took a narrow reading of the “non-knowledge” requirement, stating “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 fight isn’t settled yet, though. With over $1 Billion at stake, this ruling will certainly be appealed. In the meantime, though, Google is heralding the decision as a huge victory for internet freedom.
If you’re really dying to read the full opinion, here it is:
Google wins case against Viacom