US Case Law: “Viacom vs. Google”
In Salvador Ferrandis & Partners we are not only interested in IP developments within the scope of the European Union but also in those happening abroad. A week ago, we got knowledge of two recent decisions involving the Internet giant, Google.
The first decision was issued by the United States Court of Appeals for the Second Disctrict in “Viacom vs. YouTube”. As it is known, the case concerns the liability of Google (YouTube owner) for the uploading by Internet users of a huge amount of allegedly infringing video clips to the defendant’s website. The question raised was whether Google was liable for those conducts or either could benefit from the so-called “Safe harbors” established in the Digital Millennium Copyright Act (DMCA).
The Court of Appeals agreed with the lower as to the determination of the scope of protection conferred by the DMCA in connection with the so-called “Safe harbors”. Both courts understood that protection conferred by the “Safe Harbors” is not enforceable in those instances where the Internet Service Provider (ISP): a) has either direct or indirect knowledge of any infringing material uploaded by third parties to his website; b) and such knowledge concerns a copyright infringement which must be both specific and identifiable. If the above conditions are met, then the ISP will be held liable for copyright infringement.
However, the Court of Appeals was not in agreement with the lower court in a number of instances and thus asked for the revision of its decision.
- Firstly, the higher court disagreed with the lower in the finding by the latter that the defendant was not liable for copyright infringement. That was grounded on the assessment of the above-mentioned condition of “specific knowledge”. The higher court considered that in order to make such an assessment some evidences should have been taken into account, namely internal memoranda and e-mail correspondence, both grounded on the defendant’s website on the amount of unlicensed posted video clips relating the Premier League Soccer as for the defendant to assess the highest potential bid in order to acquire the global rights thereof. As a result, the higher court remanded the case to the lower for further proceedings on the above issue.
- Secondly, the Court of Appeals also dismissed the part of the ruling by the lower court related to the meaning of “storage of accused content”, a requirement to benefit from protection under the DMCA’s Safe Harbors. The claimant achieved to sow the doubt into the higher court as to whether the behavior by the defendant was constitutive of “mere storage” or, instead, it was just merely a “business transaction”. As a result, the higher court remanded the case to the lower in order to be determined what had actually happened and, in light of that, assess whether it was regarded to as “mere storage” or a “business transaction”. The former is that kind of storage which is technically-essential to the proper provision of a given Internet service and therefore deserves protection under the DMCA (e.g.: making available video-content to be wirelessly displayed on wireless equipments). Conversely, the latter is that type of storage which goes beyond the above scope and thus in no case it will be DMCA-sheltered.
- Last but not least, the higher court also found the defendant to be protected by the “Safe Harbors” concerning the restriction by the latter of the proprietary search mechanisms which were actually provided by the defendant through its website by making them available only to those users who are not recidivist infringers. However, the above must be envisaged in accordance with the following nuances: a) they must have been duly warned (e.g. by means of what is regarded to as “warning letters”) by their respective ISP; b) nuance a) involves, according to Section 512 (c) (3) DMCA, a necessary step prior to the taking down and/or blocking access to the content actually claimed to be infringing upon, of course, its identifiable and specific nature. If both nuances are duly observed by the ISP, then the latter will not be held liable in terms of copyright infringement.