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Viacom Files Appellate Brief in Battle With YouTube

Remember Viacom v. YouTube? We last wrote about the epic copyright case back in March, when the Southern District of New York released the previously sealed summary judgment briefs. So we thought it was time for an update.

Back in June, YouTube won the summary judgment duel, the Digital Millennium Copyright Act bottom line tidily summed up by Judge Louis Stanton: "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements."

Viacom vowed to fight on after that ruling, and lived up to its promise. Friday, Viacom filed its appellate brief in the 2nd Circuit. Pamela Jones at Groklaw has posted a text version of the brief, with a thorough analysis.

As reported in October, Viacom brought Ted Olson on board for the appeal (though Olson did let the Jenner and Block team keep the left side of the counsel list on the cover of the brief). Jones says that move is an indication that Viacom "seriously wants to win." No doubt, 'cause Ted don't come cheap. But Jones's take on the Viacom brief isn't too confidence-inspiring if your money's on a reversal.

Viacom's plea for the establishment of a "duty to monitor," says Jones, doesn't -- and really can't -- incorporate the notion of fair use. Not even Viacom is suggesting that an actual living, breathing being must view every video uploaded to YouTube and make a call on infringement. That would be absurd. Rather, Viacom is pushing for a particular sort of computer "filtration system" to screen out infringing video. I don't claim to understand a lot about the technology, or the nuances of the DMCA, but I can agree with Jones on this:

Computers don't know a thing about fair use, and there's no way to teach them about it, because it's analyzed on a case-by-case basis. You can't even teach the general public and so set up a reliable system of user-flagging, because they don't know what fair use it either. Really, only the copyright owner can stand up and tell us when he thinks a quotation goes beyond fair use, and then a judge has to decide who is right based on some factors that are known, but unpredictably interpreted, case by case. You can't write a particularly effective algorithm from such unknown and unknowable factors. It takes a human to weigh such things out.

Andrew Berger, at IP in Brief, recaps the history of the case and the legal issues, but comes out on the opposite side, his central theme being “When you welcome a thief in your house, you probably know he’s there.”

Opinions are like ... well, you know. And as the appeal progresses, with YouTube's opposition brief and, no doubt, a bunch of amicus briefs rolling in, the debate will continue to take shape. Law geeks rejoice!


Posted by Eric Lipman on December 6, 2010 at 10:17 AM | Permalink | Comments (2)


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