When I decided to launch an IP Buzz Blog, the one thing I didn't worry about was finding subjects to blog about. I am obliged to the U.S. District Court for the Southern District of New York for offering up its Opinion and Order in Viacom International v. YouTube Inc. (07 Civ. 3582 - filed 6.23.2010) as it gives me the opportunity to begin this blog with a comment about this important decision.
The core of the decision is the Court's interpretation of the scope of the "safe harbor" offered to internet service providers (ISPs) by Section 512(c) of Digital Millenium Copyright Act of 1998. This safe harbor provision allows an ISP to avoid liability for a posting that violates copyright law, so long as the ISP complies with the "notice and takedown" process outlined in subsections (c), (m) and (n) of Section 512. A party who believes that material posted on a site operated by the ISP is required to notify the ISP of their claim, providing enough information about the location and content of the claimed infringement, so the ISP can find the allegedly offending material and take it down. The party posting the material is entitled to respond to the takedown by offering any defenses they have to the claimed infringement.
A key problem in this case is that YouTube subscribers had posted over a hundred thousand infringing items, forcing Viacom to expend considerable effort compiling a list of these infringements, which it then submitted to YouTube. Viacom argued that there were many more infringing posts, which it attemped to provide notice of by offering up a "representative list" of such works on the YouTube site. YouTube declined to take down any videoclips other than those specifically identified by Viacom, in essence ignoring the "representative list" Viacom submitted.
The ability to designate a representative list is an important element of the safe harbor protection offered by Section 512. This provision (512(c)(3)(A)(ii)), offers an option for companies like Viacom, who experience the problem of a huge number of infringing posts occuring over a short period of time. We have to remember that in 1998, when the DMCA became law, social networking and viewer created content sites like YouTube didn't exist. The notice and takedown process wasn't designed with the prospect of dealing with such a huge number of infringing posts, created by thousands of individual users. This representative list concept is the only way a content owner could attempt to limit the burden of having to compile a detailed list identifying thousands of individual users, their URLs, and further details of their post, when the same item is posted by many users. So, if 10,000 people all posted a video clip of an episode from the Seinfeld sitcom, the representative list option would allow Viacom to identify the clip, instead of all of the users who posted it, in its takedown notice.
The Court in this opinion essentially renders moot the representative list option in the Act by holding that the subsection which follows the representative list, which requires that the items referred to in that list be accompanied by "information reasonably sufficient to permit the service provider to locate the material" means that the content owner must provide the individual URL of the posting. In essence, this means Viacom would still have to identify each separate posting, thereby eviscerating any benefit the representative list option offers.
Supporters of this interpretation will point to YouTube's "Claim Your Content" system, which allows content creators an opportunity, via YouTube's Audible Magic fingerprinting tool, to pre-identify content by filing a reference video which YouTube would use to automatically remove matching material, as an appropriate response to the problem of multiple infringing postings. This system offers little benefit to creators of large quantities of content, such as Viacom, as it would require them to designate thousands of hours of content annually, an unduly burdensome task, and the system can still be circumvented if enough original content is added to the posts.
So what is the bottom-line takeaway from this decision? It highlights the need for Congress, aided by imput from all of the stakeholders and the IP academic community, to revisit the DMCA and address the issue of balancing the rights of content creators with those who wish to widely distribute that content online, via a much needed update and revision of the DMCA.