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A friend-of-the-court brief filed in favor of Viacom show one thing clearly-that the U.S. publishing industry really doesn’t like the idea that it might get more difficult to file a copyright lawsuit against a website that’s good about responding to takedown notices.
If YouTube’s litigation victory over Viacom is allowed to stand, the result would be to “sanction a deeply disturbing business model,” newspaper industry lawyers wrote in a brief filed Friday supporting Viacom (NYSE: VIA). “It would authorize-and, by its economic logic, encourage-enterprises to exploit infringing copyrighted content in order to attract traffic and create value for their sites to the detriment of content owners, as long as the enterprises respond to formal ‘takedown’ notices.”
The brief, which echoes some of Viacom’s key arguments about how notice-and-takedown should work on the internet, is signed by many of the nation’s large media organizations, including The Associated Press, Advance Publications, Gannett (NYSE: GCI), McClatchy (NYSE: MNI), Scripps, and The Washington Post-as well as newspaper-industry and book-publishing trade groups, photographers associations, and sports groups like the NFL. The wide array of publishers joining Viacom’s side here suggests at least some of them may be looking to keep their litigation options open in the future when it comes to fighting user-generated content websites.
That battle will be a lot easier if they don’t have to worry about losing on the same grounds that Viacom did. The judge in Viacom’s case ruled that as long as YouTube responds quickly to takedown notices and follows a few other rules, it has a safe harbor against copyright infringement claims.
Viacom has argued that it should not be required to send copyright takedown notices with URLs to YouTube (NSDQ: GOOG). Its lawyers say YouTube deliberately ignored “red flags” of copyright infringement in order to build up its service, and should be found in violation of copyright law whether Viacom sent takedown notices or not. But the judge in the case disagreed, finding that YouTube was protected from liability under copyright law because it promptly complied with takedown notices when they were provided.
The newspapers’ brief is the clearest statement yet of the industry’s stance on this issue. “Nothing in the language [of the statute] requires that… knowledge of infringing material or activity be tethered, for example, to a specific infringing copy or URL (the specific webpage),” write the industry’s lawyers. Congress never intended for a world where a content owner absolutely must send a takedown notice, they argue.
Of course, Viacom’s argument that YouTube “should have known” is complicated by YouTube’s (successful) counter-argument: it can’t correctly identify infringing content without the help of the copyright owner. That’s especially true in the case of a copyright owner like Viacom, which hired more than a dozen marketing agencies to upload its own content to YouTube, even altering some videos to make them look more “pirated.”
Like all sides in this lawsuit, the newspapers’ lawyers are divining what Congress really wanted to do when they passed the Digital Millennium Copyright Act. That law was passed in 1998, when the web was in its infancy and a service like YouTube was-at most-a figment of the imagination.
The newspapers argue that Google’s victory should be overturned, citing many of the same cases that Viacom’s lawyers did-the demise of file-sharing services like Grokster, Aimster, and Napster.
Other parties who briefed the case include, Microsoft, which filed an amicus brief supporting Viacom, together with Electronic Arts. The fact that the software giant supports Viacom in this lawsuit suggests two things: first, that Microsoft (NSDQ: MSFT) will gladly take each and every opportunity to take a punch at its arch-rival; and second, that Microsoft-perhaps surprisingly, since it does run so many online services-actually doesn’t have much at stake here. As a company with a big internet presence, conventional wisdom would seem to be that it might want to put the burden of policing on copyright owners rather than internet companies.
But the company has shut down some of its services that were most dependent on user-generated content; it turned off Soapbox, its own user-generated video site, in June 2009, and handed off its blogging service to WordPress a few months ago.
More briefs in favor of Viacom:
» MPAA/IFTA amicus brief
» CBS amicus brief endorsing MPAA/IFTA brief.
» BMI et al amicus brief
» Business Software Association amicus brief
» Brotman/Cass/Nimmer amicus brief
» Washington Legal Foundation amicus brief
» Seven IP professors’ amicus brief
» International Intellectual Property Institute amicus brief
» Eight professors’ amicus brief
» Entertainment Industry Labor Unions amicus brief
For some groups, such as the Association of American Publishers and Broadcast Music, Inc., it’s the second time they’ve briefed this case. The first amicus brief, also supporting Viacom, was filed in May in at the district court level.
(Links to briefs in this post via Eric Goldman)