Saturday, January 9, 2010

Did the parties move for summary judgment in Viacom v. YouTube? Not quite yet.

A recently-released exchange of letters between the parties in the Viacom v. YouTube copyright suit has led to reports that "Both sides have asked a federal court for summary judgment." That's jumping the gun. Neither party has yet filed summary judgment motions. As the letters make clear, all that has happened is that the parties have informed Judge Stanton (as is required by the local rules) that they intend to move for summary judgment, and provided very brief summaries of the grounds on which they will move. Judge Stanton directed the parties to come up with a briefing schedule, subject to court approval. I suspect we will see the motions themselves sometime in the next few months.

Believe me, when the parties actually do move for summary judgment, we will know it; the filings will include hundreds, maybe thousands, of pages of evidence in support of their arguments about the applicability vel non of the DMCA's safe harbor for "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." 17 U.S.C. § 512(c)(1). And we'll also get a look at evidence reportedly showing that YouTube employees themselves uploaded infringing videos to the site. Such activity would not be protected by the safe harbor, because it was done not "at the direction of a user" but by the operators of site itself.


  1. Hi Ben,

    These mistakes and false interpretations don't surprise me at all. I doubt that very many people out here in the real world (aside from those of us who live and breath "copyight matters" every single day) have a clue what is about to happen to the world of copyrights and the Internet. If this judge rules for YouTube/Google (absent of some unclean hands theory I don't know any details about), why on earth would any "service provider" ever distribute anything other than stolen property, where there is little to no 'costs of goods sold'?

    Because they want to be good corporate citizens? I don't think so!

    Clearly, the DMCA "safe harbor" provisions were written into this law to protect "innocent" service providers who might not even be able to see the infringing materials in their servers if they looked, or when the infringing activity is taking place due to a technological process and not a human process.

    Neither is the case with YouTube/Google in this lawsuit. Everyone knows that.

    It is utterly amazing to me that this country of ours is only three pen strokes away from ending the world of copyright protection for what
    is by far our largest copyright community (visual artists).

    With a win here against Viacom, and another in February in the Google Book Settlemnt debacle, all Google will need is their long-awaited Orphan Works legislation to pass and you will never see another legitimate copyright owner in court protecting their hard-earned property again ... at least not in this country.

    I know my digital graphic arts development company (we're celebrating our 20th Anniversary this year) won't spend the money to develop anything else new in an outlaw environment such as that. Why would we if it cannot be protected? Maybe China, Germany, or France will decide to protect it for us. They don't seem to bow over to mighty Google over there. We'll have to check into that.

    How is it, Ben, that obvious theft has now become such an debated "intellectual" subject matter in this country of ours? Frankly, I see Europe and Asia starting to protect their creative communities better than we now do here in the U.S.

    What a shame!

    George Riddick
    Imageline, Inc.

  2. Mr Riddick,

    If you have been following this case, you would find that Viacom originally included, in its list of 'infringing works', videos which Viacom *itself* uploaded to YouTube.

    With that in mind, I ask you this:
    If Viacom cannot tell whether an uploaded video is authorized, how is Google supposed to be able to?

  3. Mr Riddick,

    When I see, in comments regarding legal cases, "Everyone knows that.", the case is usually that what "Everyone knows" is not in actuality, factual.

    If it was, there would be no need for the court appearance, would there?


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