“Today, platforms for user created content are so aggressively responding to the every demand of copyright holders that even presidential candidates of all political stripes have been swept up in the copyright dragnet. Online intermediaries respond to allegations of copyright infringement very seriously, even when those claims wind up curtailing free speech or the fair use rights of third parties. Certain rightsholders ought to devote the same attention to not stifling expression online.”
The following summary of this case is an excerpt from a blog post by CCIA attorney Matt Schruers:
“Viacom had sued YouTube for copyright infringement over the appearance of video clips on YouTube over which Viacom claimed the copyright. (It was later revealed that many of those clips were secretly uploaded by dozens of Viacom marketers.)
“YouTube argued that it was protected by the Digital Millennium Copyright Act’s safe harbors. Generally, those safe harbors, enacted in 1998, limit remedies against online services so long as they respond to “takedown requests” – that is, expeditiously disable access to allegedly infringing content when a copyright holder complains that particular content available on the service infringes its rights.
“YouTube complied with thousands of Viacom takedown requests, but Viacom nevertheless argued the safe harbor shouldn’t apply to YouTube, since it had “generalized” knowledge of online infringement. The court rejected Viacom’s argument, pointing out that YouTube removes numerous clips at Viacom’s request, including 100,000 within one business day, consistent with the DMCA.
“As today’s decision notes, it is nearly impossible for platforms that host user-created content to differentiate between authorized and unauthorized content, and infringing content and non-infringing content. People are sometimes surprised to learn that due to our lack of copyright ‘formalities’, there’s nowhere to look to determine with any certainty who has rights to what. Only rightsholders know that, and thus only rightsholders know what to take down. The DMCA’s Solomon-like compromise, therefore, was to assign to rightsholders the burden of coming forward with a specific complaint about infringement, and to assign to ISPs and online services the burden of responding to that complaint. Today’s decision reflects exactly that result.”