YouTube “Gets Tubed” by Internal E-Mails Showing Knowledge of Copyright Infringement

It never ceases to amaze me what even sophisticated business people will write in an e-mail. Executives of YouTube are obviously sophisticated, both in business and technology, yet internal e-mails that surfaced in a major copyright lawsuit with Viacom have seriously damaged YouTube’s defense.

In Viacom Int’l, Inc. v. YouTube, Inc., No. 10-3370 (2d Cir.), Viacom is suing YouTube for copyright infringement. The Digital Millenium Copyright Act (DMCA) grants YouTube and other internet companies a “safe harbor” from copyright liability when members of the public upload copyrighted material to those companies’ servers for viewing by other users.  However, the DMCA “safe harbor” is unavailable to a company that has actual knowledge of specific infringing material on its system.

YouTube won the case on summary judgment in the trial court. Under the standard applied by the trial court, YouTube was eligible for safe harbor protection from liability unless it knew of “specific and identifiable infringements of particular individual items.” Essentially under the prevailing standard applied by the trial court, an internet company like YouTube could await a “takedown notice” from the copyright owner before removing infringing material. The United States Court of Appeals for the Second Circuit disagreed with that standard, but a key to the decision was the existence of e-mails by YouTube’s management showing that YouTube welcomed infringing material being uploaded to its website.

For example, when one of YouTube’s founders urged his colleagues “to start being diligent about rejecting copyrighted / inappropriate content,”and mentioned an infringing clip taken from CNN, one of those colleagues wrote back by e-mail:

we should just keep that stuff on the site. i really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he gets in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down.

A different executive responded that he liked the CNN clip. He directed that YouTube could “remove [the CNN clip] once we’re bigger and better known, but for now that clip is fine.”

These e-mails and other internal communications of a similar vein were key pieces of evidence that led the Second Circuit to reverse the judgment in favor of YouTube and to send the case back to the trial court for a trial.

The Second Circuit’s decision has major significance for copyright enforcement and application of the all-important DMCA safe harbor. (Click here for the link to the Court’s opinion.)  Important rulings in the area of copyright law include:

  • the Court confirmed the general standard that exclusion of an internet service provider from the DMCA safe harbor requires actual “knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement;”
  • However, such knowledge may be shown absent receipt of a takedown demand or notification from the copyright holder;
  • The willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement;
  • “Item-specific” knowledge of infringement is not required to show the “right and ability to control” infringing activity, another element required for exclusion from the safe harbor under the DMCA (7 U.S.C. Section 512(c)(1)(B));
  • Software functions, such as replication, playback, and YouTube’s related videos feature occur “by reason of the storage at the direction of a user” within the DMCA safe harbor protections (17 U.S.C. Section 512(c)(1)).

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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One Response to YouTube “Gets Tubed” by Internal E-Mails Showing Knowledge of Copyright Infringement

  1. Brian Jones says:

    Another great post, Steve. Like you, I’m constantly amazed by what people will still put in emails–even when they’re in active litigation. You also get a sense of “old” media versus “new” media in this.

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