In an opinion Thursday, Judge Stanton granted YouTube summary judgment in a high-stakes copyright infringement case in which the plaintiff, Viacom, claims YouTube unlawfully allows Viacom’s copyrighted videos to be posted online. Judge Stanton’s had earlier granted summary judgment to YouTube because of the Digital Millennium Copyright Act’s “safe harbor” provision, which protects websites from infringement claims based on certain user-posted material, so long as the sites lack actual knowledge and have mechanisms to promptly remove the material after being notified by the copyright holder. The Second Circuit reversed and remanded for Judge Stanton to consider (among other things) whether YouTube had actual knowledge of the videos at issue. In Thursday’s opinion, Judge Stanton again ruled for YouTube. He rejected Viacom’s argument that YouTube should be bear the burden of proving it lacked actual knowledge of each of the over 63,000 videos in dispute:
[Viacom’s] argument is ingenious, but its foundation is an anachronistic, pre-Digit Millennium Copyright Act (DMCA), concept. Title II of the DMCA (the Online Copyright Infringement Liability Limitation Act) was enacted because service providers perform a useful function, but the great volume of works placed by outsiders on their platforms, of whose contents service providers were generally unaware, might well contain copyright-infringing material which the service provider would mechanically “publish” thus ignorantly incurring liability under the copyright law. The problem is clearly illustrated on the record this case, which establishes that ” . . . site traffic on YouTube had soared to more than 1 billion daily video views, with more than 24 hours of new video uploaded to the site every minute”, 676 F.3d at 28; 718 F. Supp. 2d at 518, and the natural consequence that no service provider could possibly be aware of the contents of such video. . . . If, as plaintiffs’ assert, neither side can determine the presence or absence specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. 17 U.S.C. § 512 (c)(3)(A). The system is entire workable: In 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day.