A Clinton administration architect of a digital age copyright law, a former solicitor general for the United States, and an army of content industry associations on Friday sided with Viacom in its appeal of a June court decision that said that YouTube wasn't liable for infringing the media company's copyrights.
The moves indicate that this ongoing lawsuit could become a test case that more firmly delineates the boundaries of acceptable behavior at media start-ups that might be looking to boot-strap themselves on pirated content.
Bruce Lehman, who was the U.S. assistant secretary of commerce and commissioner of patents and trademarks under President Clinton, filed papers with an appellate court Friday that indicated that he would be weighing in in favor of Viacom.
He's now chairman of the International Intellectual Property Institute, but he was one of the key players who represented the United States on the international stage in developing global copyright agreements at the advent of the internet boom. He's widely acknowledged as one of the key creators of the U.S. Digital Millennium Copyright Act, the law at the heart of the current dispute between Viacom and YouTube.
Also weighing in favor of Viacom Friday at the Second Circuit Court of Appeals was Gregory Garre, the U.S. Solicitor General under President Bush. He's representing Microsoft and video game maker Electronic Arts in a friend-of-the-court brief.
The Motion Picture Association of America also filed a brief in favor of Viacom jointly with the Independent Film and Television Alliance.
“The decision of the lower court, if not overturned, will allow businesses to profit by inviting massive amounts of online copyright theft and avoid liability simply by turning a blind eye to the direct, illegal effects of their business models,” Daniel Mandil, general counsel and chief content protection officer of the MPAA said in a press statement. “We are confident that the Court of Appeals will recognize that the lower court’s decision was entirely inconsistent with the Supreme Court’s unanimous decision in Grokster and with the plain language of the Digital Millennium Copyright Act.
Newspaper publisher Advance Publications joined with the Association of American Publishers, the Association of American University Presses, the Associated Press, the Center for the Rule of Law, Gannett and 17 other organizations and newspapers -- including The National Football League and The Washington Post, also chimed in on Friday in favor of Viacom.
"This case presents the question whether a business that knowingly builds an audience through stolen content is immune from copyright liability as long as it does one thing—comply with formal “takedown” notices it receives under the Digital Millennium Copyright Act (“DMCA”)," wrote the lawyers for the group in their brief. "At issue is whether each statutory requirement of the DMCA safe harbors should be given independent force and effect; at stake is nothing less than the ability of copyright owners to enforce their copyrights on the Internet against entities that rely on copyright infringement as a business model."
In June, New York Federal District Court Judge Louis Stanton sided with YouTube’s parent company Google, and agreed with its argument that YouTube is not liable either directly or indirectly because it’s protected by the DMCA’s safe harbor provision.
The provision states that a service provider isn’t liable if it has no knowledge of the infringements occurring on its system, and additionally that it is shielded from liability once it acts quickly to remove the infringing material when it is aware of it.
Stanton examined both the DMCA’s legislative history and case law to arrive at his conclusion.
“The present case shows that the DMCA notification regime works efficiently: When Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them,” Stanton wrote.
During the trial, Viacom's lawyers dug up communications between YouTube's founders before Google bought the start-up. Those communications indicated that the founders knew that much of the content on youTube was copyrighted, and was attracting a lot of the site's traffic.
"This case presents the question whether a business that knowingly builds an audience through stolen content is immune from copyright liability as long as it does one thing—comply with formal “takedown” notices it receives under the Digital Millennium Copyright Act (“DMCA”)," the content industry's lawyers wrote in their Friday brief. "At issue is whether each statutory requirement of the DMCA safe harbors should be given independent force and effect; at stake is nothing less than the ability of copyright owners to enforce their copyrights on the Internet against entities that rely on copyright infringement as a business model."