Copyright Tail Trying to Wag Internet Dog

April 16, 2011

A possible landmark copyright case is now before the 2d Circuit, Viacom et al. v. YouTube. On behalf of 44 co-signatory law professors, Annemarie Bridy and I wrote an amicus brief urging the court to affirm the lower court’s decision that YouTube is immune from copyright claims unless it has item-specific and location-specific information about infringing postings. The brief — which I think turned out quite well, and is, at the very least, a good example of decent legal prose — is available here. Briefs submitted by other amici (and there are lots of them) are available here.

I’ve reprinted below some of my comments from earlier postings about the case. I could be falling prey to a common syndrome: when you work as an advocate for one side in a case for a while, you begin to believe that you have truth and justice firmly on your side, that the opposing position is outrageous and contrary to all common sense and moral principle . . . . But I really do think this one matters, for the future of the Net.
It was a bit more of an adventure submitting this brief than it should have been — the 2d Circuit does not treat its “amici” in a very friendly fashion. Not only must you be admitted to the 2d Circuit bar to submit an amicus brief — no temporary admissions pro haec vice are permitted — but you also have to be sure to be hooked up to the latest version of the court’s electronic filing system; not huge problem, i suppose if you’re a lawyer or law firm practicing frequently in front of the 2d Circuit, but not something that a law professor, even if admitted to the court’s bar, is likely to be current with. And even if the parties themselves require electronic filing, the court does not — so in addition to getting all the aforementioned ducks in a row, you have to comply with the court’s rather arcane printing rules and deliver 6 hard copies to them. Seems all a bit overly formalized, and a means to discourage, rather than encourage, participation — I mean, they don’t have to even read the briefs that are submitted, so why make it so hard for people to submit them?
And one little humorous side note. As noted here, YouTube has changed its “repeat infringer” policy. The Copyright Act requires, as a pre-condition to asserting the immunity from infringement claims provided in section 512, that a service provider

“has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

YouTube has had such a policy for a while — more or less a “3 strikes and you’re out” kind of thing. [Indeed, one of the truly outrageous things I learned while working on this brief is that Viacom itself was actually thrown off of YouTube as a “repeat infringer” because its marketing department had posted thousands of files for promotional purposes, and its legal department issued hundreds of “takedown notices” with respect to many of them]. But now they’ll let you come back onto the system if you go to “copyright school” — watch a video and take a copyright exam [The video is pretty good — good enough that I couldn’t tell whether it was YouTube’s copyright school or a parody of same . . .]
[thanks to Ben Mishkin and Steven Kim for pointers]
from earlier postings

YouTube successfully defended itself against infringement claims brought by a host of content providers by asserting the “safe harbor” provisions of sec. 512(c) of the Copyright Act, and the case concerns the interpretation of that provision. The section 512 safe harbors have been of prodigious importance — by giving providers of online applications and services a defense to infringement claims arising out of their users’ activities (e.g., user postings of infringing files on YouTube), it has enabled the (astonishing) growth of “user-generated content” or “Web 2.0″ sites over the past decade — YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, Blogger, and on and on and on. At the absurdly high volume at which these sites operate — 250,000 words a minute posted on Blogger, 40 hours of video a minute on YouTube, etc. — the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day. So you don’t get a YouTube, or a Facebook, or a Blogger, etc. without something like sec. 512; it’s no accident, as I’ve pointed out before, that all of the largest Web 2.0 sites on the global net are based here in the US. And, among other things, if you don’t have a YouTube, or a Facebook, or a Twitter, Hosni Mubarak is still the President of Egypt.
So there’s a lot at stake in how the 2d Circuit — widely regarded, along with the 9th Circuit, as the source of the most important copyright doctrine — interprets the statute. Precedent up to now (mostly in the 9th Circuit) has (correctly) given service providers very broad protection under the statutory immunity; to make a very long story short, the service providers (like YouTube) have no duty to find infringing material that may be present on their site, or to do anything about infringing material on their site, unless and until the existence of the infringement(s) is brought to their attention by the copyright holder. Once they receive such a notification from the copyright holder (through a detailed set of procedures laid out in the statute), they have to act — removing or disabling access to the offending material (and informing the user that they’ve done so). But without receiving the notice of infringement, they’re under no duty to act, and they’re within the safe harbor if the copyright holder subsequently asserts a claim against them.
The content providers don’t like it, needless to say. They’d like YouTube to, say, take down everything uploaded to the site that is labelled “The Daily Show,” for instance, or “Lionel Messi’s Fabulous Goal vs Arsenal,” on the grounds that they should know of the infringing nature of the postings, without having to be specifically informed of that by the copyright holder. If you want to know why that’s both wrong (as a matter of statutory construction) and absurd (as a matter of public policy), read the brief. [It’s pretty short — 18 pages or so of text — and the prose, of course, is crystalline).
If the 2d Circuit endorses the 9th Circuit position — and I fervently hope that it does — that battle, at least, is probably over; there’s not much copyright doctrine out there where the 2d and 9th Circuits are in agreement but some other circuit (or the Supreme Court, for that matter) takes an opposing view.