Secondary Liability for Copyright Infringement in the Web 2.0 Environment: Some Reflections on Viacom v.YouTube

• Author: Miquel Peguera
• Position: Professor,Universitat Oberta de Catalunya
• Pages: 18-27

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 1 (2011)

18

Secondary Liability for Copyright Infringement in the Web 2.0

Environment: Some Reflections on Viacom v. YouTube

∗

∗∗

∗

Miquel Peguera

Professor,Universitat Oberta de Catalunya

mpeguera@uoc.edu

Abstract. The lawsuit brought by Viacom and other copyright owners against YouTube

underscores the uncertainties of the law of secondary liability for third-party copyright

infringement. Particularly, it shows the strengths and weaknesses of the Digital Millennium

Copyright Act, on which most Web 2.0 service providers heavily rely for protection from liability

for their users’ infringements. This article explores the relationships between the protec tion

granted by the DMCA safe harbors and the standards of secondary liability developed at common

law, with special reference to that of inducement adopted by the U.S. Supreme Court in the

Grokster case. Keywords: YouTube, Secondary Liability, DMCA, induce ment, copyright.

1. Introduction.

Liability of online service providers in the field of copyright continues to be a highly controversial issue. This is

particularly true of the liability of providers operating platforms generally referred to as web 2.0 where users

upload vast amounts of potentially copyrighted creative content, including photograp hs, music or video files.

Services such as Yo uTube, Facebook, MySpace, eBay, Amazon, o r Flickr, among many others, are examples of

this category of platforms. Under the US law, all these providers rely on the protection esta blished by the Digital

Millennium Cop yright Act (“DMCA”), a 1998 statute that creates a series of liability safe harbors for specific

online activities.

1

One of the activities covered is the storage of materials provided by users, so that qualif ying

service providers a re exempted from liability for all monetary relief for direct and second ary liability by reason

of the storage of infringing content at the direction of their users.

2

The application of this safe harbor has been discussed i n just a handful of cases, the most relevant of which i s

probably the Viacom’s suit against YouTube, recently d ecided at the lower court level.

3

On 23 June, 2010, after

more than three years of litigation and a voluminous record—but only so me days after the parties filed their last

briefs concerning their cross motions for summary judgment—the United State s District Court for t he Southern

District of New York ha nded down its much-expected ruling on this case. The parties and their supporting amici

had adva nced and disc ussed all types o f pos sible ar guments in favour and against Yo uTube’s liability for the

infringement of plaintiffs’ c opyrighted works.

4

Chief amo ng the dispu ted legal is sues was whether de fendants

were shielded from cop yright liability under the DMCA’s hosting sa fe harbor. The court granted summary

judgment that defendants were indeed entitled to the DMCA protectio n against all of plaintiffs’ direct and

∗

This paper was originally published in Kierkegaard, S. (2010) Private Law: Rights, Duties and Conflicts. IAITL. pp.423-

435

1

Title II of the DMCA amended Chapter 5 of Title 17 of the United States Code, by adding a new section 512 titled

“Limitations on liability relating to material online”. See 17 U.S.C. § 512 (2000).

2

See 17 U.S.C. § 512(c) (2000) (“Information Residing on Systems or Networks at Direction of Users”).

3

Viacom Intern. Inc. v. YouTube, Inc. 2010 WL 2532404 (S.D.N.Y. June 23, 2010). The ruling grants defendants motion for

summary judgment and denies the cross motions filed by both Viacom and the Class Plaintiffs (The Football Association

Premier League Limited, et al.). In this article, unless indicated otherwise, I will use the term “YouTube” to refer generally to

defendants (YouTube, Inc., YouTube, LLC, and Google Inc.).

4

Almost all documents filed with the case are available at http://dockets.justia.com/docket/new-

york/nysdce/1:2007cv02103/302164 / (last visited Sept. 5, 2010).