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Summary:

In a case that is increasingly starting to look like a battle between Silicon Valley and Hollywood, eBay, Facebook, IAC and Yahoo an amicus brief in support of YouTube in its case against Viacom, arguing that a decision in favor of Viacom could stifle web innovation.

It came as no surprise to anyone when the Hollywood studios rallied in support of Viacom in its long-running copyright infringement lawsuit against Google and YouTube. After all, many of the same issues that Viacom raises about YouTube profiting off of its content also apply to them. But now, a number of web companies are standing up for the video share site, arguing that a ruling in favor of Viacom “would retard the development of the Internet and electronic commerce.”

In a case that is increasingly starting to look like a battle between Silicon Valley and Hollywood, eBay, Facebook, IAC and Yahoo filed their own amicus brief in support of YouTube yesterday. The gist of their argument is that user-centric services like YouTube are at the center of rapidly expanding Internet services; by finding YouTube guilty of copyright infringement for the actions of its users, the court would create uncertainty around their ability to build robust Internet businesses.

From the filing:

“Plaintiffs’ legal arguments, if accepted, would retard the development of the Internet and electronic commerce, create uncertainty for service providers regarding their legal exposure for alleged infringements, and inhibit the growth and development of user-centric models, that, day after day, make the Internet and the world more democratic.”

In short, the filing argues that the ability to provide such services depends on safe harbor protections as granted by the Digital Millennium Copyright Act (DMCA). Without those protections, there would be fewer collaborative communities like YouTube, which have been at the forefront of unprecedented growth on the Internet. The web companies also allege that without them a “fear of liability” would discourage Internet companies from investing in businesses in which they could be held accountable for the actions of their users.

That’s because inevitably there will be some bad apples threatening to ruin the bunch. “While the vast majority of [Internet] contributions are entirely lawful, inevitably some will not be,” the filing argues. “Without the protections of the safe harbors, the possibility of statutory damages — multiplied by thousands of works — could severely hamper innovation on the Internet.”

While much of the web companies’ case is focused on ensuring that the DMCA safe harbor provision remains intact, it does touch on a few other issues raised by Viacom’s case, including whether so-called “red flag” awareness of infringement should invalidate those safe harbors. Much of Viacom’s case centers around the senior management at YouTube allegedly being aware of infringing activity before it was acquired by Google, and Google’s alleged awareness of infringement happening on YouTube at the time that it was contemplating an acquisition of the site.

“[P]roviders would necessarily be aware, as a statistical matter, that at least some of these sites must contain infringing material, even if they did not know which sites contained illegal content.”

That is, even if YouTube (or Google) were aware of the fact that the site hosted some infringing content, it could not be held responsible for individual pieces of infringing content. Given the vast store of content that is hosted on YouTube and other sites, the filers argue that it would be nearly impossible to identify that content: “If service providers lacked the practical ability to determine which of their users’ materials were infringing in 1998 [when the DMCA was written], that is all the more true…today.” They subsequently urge the court to broaden the knowledge disqualifiers of the DMCA’s safe harbors.

Picture courtesy of Flickr user rafaelmarquez.

Related content on GigaOM Pro: Why Viacom’s Fight With YouTube Threatens Web Innovation (subscription required)

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  1. I think it’s hard to hide behind the DMCA when some of their founders were uploading infringing content and being confronted on it via internal emails.

    1. I suggest you examine the details before you echo the viacom lawyers. You should read the quotes in question and see how wrong those allegations are.

      1. Jon, you cannot be implying that YouTube did not know about all the infringing content on their site.

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