Is Third Time the Charm in Viacom’s Battle with YouTube?


Viacom Inc. (NASDAQ:VIA) is hoping that third time’s the charm in its longstanding fight with Google’s (NASDAQ:GOOG) YouTube regarding copyright infringement. Having already been dismissed twice by summary judgment, Viacom filed papers at the Second Circuit Court of Appeals on Friday and hopes to find a judge “to preserve the appearance of justice.”

The long-running dispute most recently went to court this April, with U.S. District Judge Louis Stanton concluding that Viacom lacked evidence to prove that YouTube was actively aware of specific infringements and subsequently failed to act on them. Kent Walker, senior vice president and general counsel of Google, wrote in a press release at the time: “Today’s decision recognizes YouTube as a thriving and vibrant forum for all these users, creators and consumers alike. Today is an important day for the Internet.”

Now, Viacom wants the Second Circuit to overturn Stanton’s ruling. Viacom wrote in its filing, “Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the [Digital Millennium Copyright Act], this Court should exercise its discretion to remand the case to a different judge ‘to preserve the appearance of justice.’”

Viacom believes Stanton should have looked more deeply into whether YouTube “made a deliberate effort to avoid guilty knowledge” — something the judge wouldn’t allow after Viacom admitted it didn’t have “the kind of evidence that would allow a clip-by-clip assessment of actual knowledge.”

The entire argument is a complicated gray area in the Digital Millennium Copyright Act, which makes it difficult to assign blame to websites providing a platform for videos uploaded by users. If websites quickly remove infringing clips upon notice from copyright owners, they are essentially provided free harbor from copyright lawsuits under the act.

What Viacom is arguing is that YouTube should be liable regardless of whether the company had that knowledge, pointing out the fact that when the site was in its early stages, as much as 80 percent of user traffic was guided by copyrighted content.

“If a service provider knows that The Daily Show is being repeatedly infringed on its service, but the service provider deliberately avoids learning the location of specific infringing Daily Show clips, then under [Stanton]’s reading the service provider is not willfully blind. It can rest assured in its deliberate ignorance and has no duty to take any action to locate the infringing clips of The Daily Show that it knows are there,” Viacom wrote in its brief.

Viacom believes that the way the system is set up encourages websites like YouTube to take active steps to put blinders over their eyes when it comes to copyrighted content. The system “actually encourages defendants to engage in willful blindness as…defendants who are aware of a high probability of infringement of a plaintiff’s works on their service can escape liability simply by deliberately taking steps to avoid learning of the specific location of the infringements,” Viacom wrote.

Google will file a response to the newest lawsuit in the coming days.

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