Copyright Infringement, YouTube & the DMCA

Google won a huge victory last week when a federal judge decided that Google was not liable for copyright infringement perpetrated by its YouTube Users.

In 1996, Viacom, the owner of Paramount Pictures and MTV Networks, filed a $1 billion lawsuit against Google alleging that thousands of videos on YouTube violated its copyrights.

Google fought back asserting that as a service provider it was entitled to the safe harbor protection of the Digital Millennium Copyright Act (“DMCA”) and therefore not liable for copyright violations of YouTube users.  Google asserted that it had acted expeditiously and removed allegedly infringing materials when notified of the specific material by the copyright owner as required by the DMCA.

Viacom asserted that Google was not entitled to the DMCA safe harbor because it knew that material infringing Viacom’s copyrights was posted on YouTube.

The critical issue was whether Google had met the DMCA’s safe harbor requirements:

Did Google’s general knowledge of possible infringement negate  protection?

Courts have been very clear regarding the necessity of strict compliance with the DMCA’s requirements.  For a service provider to qualify for safe harbor protection, the service provider must take a variety of actions including:

• designating an agent with the Copyright Office;
• providing and following a copyright infringement notification/take down procedure; and
• a counter-notification procedure.

In general the DMCA states that “A service provider shall not be liable for monetary relief . . .for infringement of copyright . .if the service provider

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;”

The judge decided that the phrases above meant more than general knowledge of the prevalence of infringement.  They meant “specific and identifiable infringements of particular individual items.”  In short, Google had a safe harbor.  The burden to identify and notify the service provider of alleged infringement is on the copyright owner.

The bottom line is that service providers don’t have to actively monitor their sites for infringing content.  They may presume user material is not infringing unless notified otherwise.  If they follow the DMCA guidelines and act promptly to take down material alleged to be infringing, they may have protection from claims of big damages.