Summary:

Here we go again: Viacom has filed an appeal in its long-running lawsuit against Google and YouTube, arguing that founders of the video sharing site were aware of the massive infringement happening and that they shouldn’t be protected under the DMCA’s Safe Harbor provisions.

Viacom was dealt a blow in its long-running lawsuit against Google and YouTube earlier this year, as a judge issued a summary judgment in favor of the video sharing site. Now, Viacom is asking for a another look at the case, filing an appeal that calls into question YouTube’s protection under the Digital Millennium Copyright Act’s (DMCA) Safe Harbor provision.

On Friday, Viacom filed its long-expected appeal of the case, arguing once again that YouTube and Google were not only aware of infringing material that had been uploaded to the video sharing site, but that they sought to keep that content online to keep its growth trajectory intact. At the heart of Viacom’s argument is this:

“YouTube faced a stark choice: Like its competitor Google Video, it could screen uploaded videos for unauthorized copyrighted content and build its business on content that it had the legal right to reproduce, display, perform, and distribute. Or it could attempt to grow its business more rapidly by displaying and performing the copyrighted creations of others without authorization. It chose the latter course, stating ‘we need to attract traffic.'”

Viacom’s argument in the appeal doesn’t stray very far from its argument in the original case. But it does find fault with the district court’s ruling, basically saying that the court read the Safe Harbor provisions too broadly. From the filing:

“The district court nevertheless held that YouTube had no liability for the rampant infringement of copyrights it ‘welcomed.’ To reach that implausible conclusion, the district court held that the narrow safe harbor established by Section 512(c) of the Digital Millennium Copyright Act… shields any infringing activity (‘however flagrant and blatant’) that ‘flow[s] from’ a user’s upload of copyrighted material to a website, and is unavailable to a service provider only when a copyright owner can demonstrate that the service provider has actual knowledge of ‘specific and identifiable infringements of individual items,’ including the ‘works’ locations at the site…'”

The basic gist is that in the district court’s summary judgment, it acknowledged that YouTube and Google knew of rampant infringement happening on the site, but without knowledge of specific URLs given by content owners, it couldn’t take down all the infringing files. Viacom believes that, if upheld, such a decision “would immunize from copyright infringement liability even avowedly piratical Internet businesses.”

Of course, a lot has happened in the years since Viacom filed its lawsuit, and YouTube has made great strides in filtering out copyrighted material on the site, or at least enabling rights holders to lay claim to that material. Perhaps knowing that the appeal was coming soon, YouTube even highlighted its work in this respect with a blog post on Thursday, reminding the world that it rolled out its video identification technology three years ago. That technology, called Content ID, allows content owners to block copyrighted material uploaded to the site or claim it as their own and monetize it.

YouTube says more than 100 million videos have been claimed since it rolled out the Content ID System, and rather than block those videos, more content owners are choosing to monetize videos uploaded by users than ever before. According to its blog post, YouTube says claims to monetize videos through the Content ID system have risen 200 percent, with the technology now attributable for about a third of all monetized video views each week.

Google also issued the following statement after the appeal was filed:

“We regret that Viacom continues to drag out this case. The court here, like every other court to have considered the issue, correctly ruled that the law protects online services like YouTube, which remove content when notified by the copyright holder that it is unauthorized. We will strongly defend the court’s decision on appeal.”

While YouTube has made great strides in its fingerprinting technology, that provides little solace to Viacom, which sought $1 billion in its lawsuit against Google. It’s more than just money at stake in the proceedings; with the case headed to appeal, how the DMCA is read in the future could also be up for debate.

Picture courtesy of Flickr user rafaelmarquez.

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