Google, Viacom Settle Copyright Infringement Dispute That Centered on DMCA ‘Safe Harbor’ Provision

Author: Brian R. Westley

Viacom has settled its seven-year copyright dispute with Google over the posting of tens of thousands of unauthorized video clips on YouTube. The lawsuit, which involved the applicability of the Digital Millennium Copyright Act’s “safe harbor” provision, was brought by Viacom against Google in 2007. Terms of the settlement were not disclosed.

The Digital Millennium Copyright Act, or DMCA, limits the liability of online service providers for copyright infringement by their users—provided the service providers have no “actual knowledge” of the infringing material. The DMCA places the burden on copyright owners to notify service providers about the infringement. The Act requires that notifications be in writing and specify the content claimed to have been infringed.

Viacom argued that YouTube had at least a general awareness that infringing content was prevalent on its website. But in granting summary judgment for Google, the district court ruled that such awareness was not enough, and that only actual knowledge of specific instances of infringement would disqualify a service provider from the safe harbor provision. Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 524 (S.D.N.Y. 2010). The Second Circuit in April 2012 affirmed the district court’s interpretation of the safe harbor provision but remanded the case because a factual issue existed as to YouTube’s level of knowledge regarding the 79,000 clips that were the subject of the lawsuit. Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 30–33 (2d Cir. 2012). In April 2013, the district court determined that Viacom failed to meet its burden that YouTube was aware of specific instances of infringement. Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013). The court also discussed the wisdom of the DMCA’s requirement that the copyright owner identify the infringement, noting that more than 24 hours of new video is uploaded to YouTube every minute. The court explained that “no service provider could possibly be aware of the contents of each such video.” Id. at 114.

Viacom had appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit. Oral arguments were scheduled for March 24. Google acquired YouTube in 2006.

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