PublishedJune 23, 2010

DMCA Safe Harbors Strike a Balance

Today a federal judge in New York granted YouTube’s motion for summary judgment in the closely-watched Viacom v. YouTube copyright case.

Viacom sued YouTube for copyright infringement over the appearance of video clips on YouTube over which Viacom claimed the copyright. (It was later revealed that many of those clips were secretly uploaded by dozens of Viacom marketers.) YouTube argued that it was protected by the Digital Millennium Copyright Act’s safe harbors. Generally, those safe harbors, enacted in 1998, limit remedies against online services so long as they respond to “takedown requests” – that is, expeditiously disable access to allegedly infringing content when a copyright holder complains that particular content available on the service infringes its rights.
YouTube complied with thousands of Viacom takedown requests, but Viacom nevertheless argued the safe harbor shouldn’t apply to YouTube, since it had “generalized” knowledge of online infringement. The court rejected Viacom’s argument, pointing out that YouTube removes numerous clips at Viacom’s request, including 100,000 within one business day, consistent with the DMCA.
This decision shows that the DMCA safe harbors are working, and that Congress struck the proper balance, by providing robust protection for creators who think their copyrights are infringed, while still allowing platforms for expression to flourish online.
As today’s decision notes, it is nearly impossible for platforms that host user-created content to differentiate between authorized and unauthorized content, and infringing content and non-infringing content. People are sometimes surprised to learn that due to our lack of copyright ‘formalities’, there’s nowhere to look to determine with any certainty who has rights to what. Only rightsholders know that, and thus only rightsholders know what to take down. The DMCA’s Solomon-like compromise, therefore, was to assign to rightsholders the burden of coming forward with a specific complaint about infringement, and to assign to ISPs and online services the burden of responding to that complaint. Today’s decision reflects exactly that result.
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