YouTube wins case against Viacom
A few comments on this summary judgment ruling:<p>1. The decision came at the trial-court level and is not binding on other courts (though it might be persuasive). It is a summary judgment, meaning that the judge decided it before a trial could be held based on affidavits submitted by the parties. This also means that it will be easier to reverse on appeal than would a decision after trial.<p>2. The decision puts the burden on a copyright holder to identify item-by-item each claimed instance of copyright infringement and to report it under the DMCA. It leaves the hosting party in a position of being able to ignore what may or may not be infringing on its site <i>so long as</i> it responds promptly and faithfully to take-down notices for specific items.<p>3. The court sharply distinguished precedents concerning sites that had facilitated P2P copying, concluding that those cases had nothing to do with the DMCA safe harbor. Viacom had obviously played up those cases, essentially arguing that the defendants here profited from the regular and widespread posting of infringing materials on the YouTube site and therefore should be guilty of some form of contributory infringement liability. The court stiff-armed all such arguments by saying, in effect, "no, that's all different - Google's sole obligation here was to comply with DMCA and, if it did, it can't be held liable as a contributory infringer."<p>4. The court also dismissed the idea that Google could be held liable for not doing wholesale take-downs upon receiving a general notice that broad categories of materials on its site were potentially infringing (in essence, holding that a hosting site cannot possibly be in a position to determine what truly is or is not infringing just because it falls in some category or other of materials that might be infringing). Thus, the court refused to interpret DMCA in a way that puts the hosting party in a position where it must actively monitor its site for offending materials apart from its obligation to respond to specific take-down requests.<p>5. What is really involved here is a policy dispute over the safe-harbor protections of DMCA: Google says it is enough that it complies with take-down requests; Viacom says Google should still be liable if widespread posting of infringing material is regularly going on and if Google is profiting from that activity.<p>6. Though the judge did not make formal mention of it in his decision, it cannot have helped Viacom that it appears to have had dirty hands in this mess, in part by having its own agents upload a good number of the allegedly offending materials to the site. This sort of conduct really stinks of a setup and prompt judges to shape their formal legal reasoning in a way that reflects their disapproval of such misconduct.<p>7. On a final note, summary judgments are notoriously difficult to uphold on appeal and so this will be appealed and the outcome of that appeal will be anybody's guess. Therefore, an important victory for Google but by no means any sort of final one.