{"id":1780,"date":"2018-01-11T07:03:50","date_gmt":"2018-01-11T07:03:50","guid":{"rendered":"http:\/\/www.dekuzu.com\/en\/?p=1780"},"modified":"2018-01-11T07:03:50","modified_gmt":"2018-01-11T07:03:50","slug":"viacom-google-battle","status":"publish","type":"post","link":"https:\/\/www.dekuzu.com\/en\/2018\/01\/viacom-google-battle.html","title":{"rendered":"Viacom-Google battle"},"content":{"rendered":"

YouTube, owned by Google, operates a website onto which users may upload video files free of charge. Uploaded files are copied and formatted by YouTube\u2019s computer systems, and then made available for viewing on YouTube. Plaintiffs\u00a0claimed<\/a>\u00a0that \u201cDefendants had \u2018actual knowledge\u2019 and were \u2018aware of facts or circumstances from which infringing activity was apparent,\u2019 but failed to do anything about it.\u201d<\/span><\/p>\n

<\/p>\n

Defendants designated an agent, and when they received specific notice that a particular item infringed a copyright, they swiftly removed it. It is uncontroverted that all the clips in suit are off the YouTube website, most having been removed in response to DMCA takedown notices.<\/span><\/p>\n

Thus, the critical question was whether the statutory phrases \u201cactual knowledge that the material or an activity using the material on the system or network is infringing,\u201d and \u201cfacts or circumstances from which infringing activity is apparent\u201d in \u00a7512 mean a general awareness that there are infringements, or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.<\/span><\/p>\n

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users\u2019 postings infringe a copyright would contravene the structure and operation of the DMCA. When YouTube was given the notices, it removed the material. It is thus\u00a0protected<\/a>\u00a0\u201cfrom liability for all monetary relief for direct, vicarious and contributory infringement\u201d subject to the specific provisions of the DMCA.<\/span><\/p>\n

Contours of the \u201csafe harbor\u201d provision of the DMCA<\/span><\/h4>\n

US court of appeals for the second circuit reviewed an order granting summary judgment de novo. The first and most important question on appeal was whether the DMCA safe harbor at issue requires \u201cactual knowledge\u201d or \u201cawareness\u201d of facts or circumstances indicating \u201cspecific and identifiable infringements\u201d.<\/span><\/p>\n

On appeal, in plaintiffs\u2019 view, the use of the phrase \u201cfacts or circumstances\u201d demonstrates that Congress did not intend to limit the red flag provision to a particular type of knowledge. The plaintiffs contended that requiring awareness of specific infringements in order to establish \u201cawareness of facts or circumstances from which infringing activity is apparent\u201d, renders the red flag provision superfluous, because that provision would be satisfied only when the \u201cactual knowledge\u201d provision is also satisfied. For that reason, the plaintiffs urged the Court to hold that the red flag provision \u201crequires less specificity\u201d than the actual knowledge provision.<\/span><\/p>\n

In court\u2019 opinion this argument misconstrues the relationship between \u201cactual\u201d knowledge and \u201cred flag\u201d knowledge. Construing \u00a7 512(c)(1)(A) to require actual knowledge or awareness of specific instances of infringement does not render the red flag provision superfluous. The phrase \u201cactual knowledge\u201d is frequently used to denote subjective belief. By contrast, courts often invoke the language of \u201cfacts or circumstances\u201d in discussing an objective reasonableness standard.<\/span><\/p>\n

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or \u201csubjectively\u201d knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement \u201cobjectively\u201d obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the \u00a7 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement.<\/span><\/p>\n

Refusing to accommodate or implement a \u201cstandard technical measure\u201d exposes a service provider to liability; refusing to provide access to mechanisms by which a service provider affirmatively monitors its own network has no such result. In this case, the class plaintiffs made no argument that the content identification tools implemented by YouTube constitute \u201cstandard technical measures,\u201d such that YouTube would be exposed to liability under \u00a7 512(i). For that reason, YouTube cannot be excluded from the safe harbor by dint of a decision to restrict access to its proprietary search mechanisms.<\/span><\/p>\n

The court\u00a0held<\/a>\u00a0that although the District Court correctly interpreted \u00a7 512(c)(1)(A), summary judgment for the defendants was premature.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

YouTube, owned by Google, operates a website onto which users may upload video files free of charge. Uploaded files are copied and formatted by YouTube\u2019s computer systems, and then made available for viewing on YouTube. Plaintiffs\u00a0claimed\u00a0that \u201cDefendants had \u2018actual knowledge\u2019<\/p>\n

Continue readingViacom-Google battle<\/span><\/a><\/div>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5,29,25,6,4,17,23],"tags":[],"class_list":["post-1780","post","type-post","status-publish","format-standard","hentry","category-copyright","category-digital","category-distribution","category-intellectual-property","category-internet","category-litigation","category-safe-harbor","entry"],"_links":{"self":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/1780","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/comments?post=1780"}],"version-history":[{"count":0,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/1780\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/media?parent=1780"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/categories?post=1780"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/tags?post=1780"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}