Paul M. Smith of Jenner & Block for Viacom International told the panel that YouTube has the technology to tell whether a particular clip is infringing, and he disparaged the position taken by YouTube as "How could we have known what was up there?"
That, Smith said, "is a complete red herring. They were fully on notice there were tons of material up there on which they were making money."
YouTube "made this kind of money on someone else's property," Smith said.
Charles S. Sims of Proskauer Rose argued for The Football Association, claiming that YouTube failed to give his clients the technological tools to identify repeat infringement.
Sims was asked by Miner exactly how his clients knew that YouTube was committing copyright infringement.
Because his clients sent "a series of take-down notices," Sims answered, and YouTube then "made a deliberate decision" to take down clips when informed it was posting licensed material, but conveniently left other versions of the same clip on its website.
"So what's left for our clients is to engage in this endless rigmarole" of issuing take-down notices and litigating the rest, Sims said, a process he likened to the game "Whack-a-Mole."
Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York issued partial summary judgment on June 23, 2010, for YouTube and its parent company, Google.
Google acquired YouTube for $1.65 billion in 2006 convinced that the safe harbor provisions shielded it from liability, but the plaintiffs claim Google was well aware that YouTube's rapid growth was driven by pirated content.
Under the safe harbor provisions in 17 U.S.C. §512(c), (m), and (n) of the Digital Millennium Copyright Act, a service provider cannot be liable for copyright infringement unless it has "actual knowledge" that the material is infringing or there are "facts and circumstances from which infringing activity is apparent." Monetary liability can be avoided if the service provider acts swiftly to remove the material once it obtains that knowledge or get notice of the violation.
In his 2010 ruling, Stanton said that, when YouTube "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."
Stanton said that left "the critical question" of whether the "actual knowledge" or "apparent" infringement language in the statute means "a general awareness" there are infringements or means "actual and constructive knowledge of specific and identifiable infringements of individual items."
For Stanton, it was the latter and he granted YouTube's summary judgment motion.
The plaintiffs appealed, with Smith and his co-counsel filing a brief called "YouTube Builds a Business Based on Infringement." Sims and his co-counsel said in their brief that Stanton erred in requiring that "knowledge or awareness be 'item-specific.'"
But yesterday, YouTube Inc. attorney Andrew H. Schapiro of Quinn Emanuel told the 2nd Circuit that "every court" that has considered the issue has interpreted the act as requiring "specific" awareness of infringement to take a service provider away from the safe harbor.
Miner asked Schapiro whether, if YouTube knows that "The Colbert Report" from Comedy Central is on its site and it is obviously copyrighted material, "isn't that kind of closing your eyes or blinding yourself to the fact?"
Livingston pressed the point, asking how YouTube could not know it was infringing when it shows an entire clip from "The Daily Show with Jon Stewart."
Schapiro said Viacom hired a company "to search Internet sites and issue take-down notices" and the company was "instructed to leave up all clips of the Daily Show and Colbert under three and a half minutes."
Schapiro said that knowing there is a copyright on material is different from knowing that something is actually infringing.
"This is a case about specific clips," he said. "There isn't one clip that YouTube knew was infringing that it didn't take down."
Cabranes laid out a series of five questions of material fact that could have possibly defeated summary judgment, saying, "I'm wondering whether summary judgment was appropriate here."
For example, the judge said Viacom had alleged that, soon after YouTube introduced its service, YouTube was aware that 80 percent of the material was copyrighted.
"Isn't that a material fact?" he asked Schapiro.
"It's not material because it goes only to general knowledge," Schapiro said.
(Souce: New York Law Journal)
