Seattle Copyright Watch - Insight and Commentary on Copyright and other Intellectual Property topics and, occasionally, Dogs

This post follows up on my post entitled YouTube's Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit.  Viacom and other plaintiffs who are content owners sued YouTube for copyright infringement.  The district court granted YouTube’s motion for summary judgment, ruling that YouTube was protected by the DMCA §512(c) safe harbor.  On appeal, the Second Circuit ruled in YouTube’s favor on some issues, but remanded the case to the district court to address four specific issues.  On remand, the district court ruled in YouTube’s favor on all four of those issues, granted YouTube’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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The Second Circuit issued its opinion in Viacom v. YouTube last week.  This case is similar to UMG v. Shelter Capital Partners, LLC in that it addresses issues arising out of applying the Digital Millennium Copyright Act (DMCA) safe harbor provisions to a service provider that permits users to upload videos to its website and view video clips uploaded by others without charge.  See my post Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit for details on UMG v. Shelter Capital.  The Second Circuit agreed with some, but not all, of the Ninth Circuit’s DMCA safe harbor analysis.

The plaintiffs in Viacom v. YouTube appealed the district court’s ruling granting YouTube’s motion for summary judgment on the grounds that YouTube was protected by the DMCA §512(c) safe harbor and denying plaintiffs’ cross motions for partial summary judgment.  This case is actually comprised of related actions in which the plaintiffs, including Viacom, film studios, television networks, music producers, sports leagues and class action plaintiffs, are copyright holders who sued YouTube for copyright infringement based on the public performance, display, and reproduction of video clips that appeared on the YouTube website between 2005 and 2008.  The specific video clips at issue are 63,497 clips identified by Viacom and 13,500 clips identified by the class action plaintiffs.  The Second Circuit refers to the clips at issue as “clips-in-suit.”

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YouTube announced its purchase of RightsFlow on its blog last Friday.  RightsFlow works with labels and distributors, artists and music services to simplify copyright licensing.  Mechanical licensing and royalty reporting are RightsFlow’s core services.  A mechanical license (also known as a “compulsory license”) gives anyone the right to make and distribute a recording of a musical work once the copyright owner has distributed a recording of the work to the public in the U.S.  The copyright owner cannot refuse permission for someone else to record the work, but whoever records the work must pay a preset compulsory license royalty.  17 U.S.C. §115 is the applicable statute.  RightsFlow boasts a database of over 10.5 million songs, economies of scale, and flexible, scalable data systems that are integrated with thousands of publishers and societies throughout the world.

The compensation issue was at the heart of the 2010 Viacom v. YouTube case.  Viacom and other content owners accused YouTube of harming their interests by allowing YouTube users to watch a massive library of unlicensed infringing copyrighted works.  They argued that YouTube was not entitled to the DMCA 17 U.S.C. § 512(c) safe harbor and that YouTube knew of infringing activity, but failed to stop it.  The §512(c) safe harbor provides that an online service or network access provider will not be liable for infringing content stored at the direction of a user if the provider meets certain conditions.   Although the district court ruled in YouTube’s favor, YouTube’s copyright protection procedures were scrutinized and criticized.  Since the Viacom case was filed, YouTube has taken steps to improve its protection of the copyrighted works posted on its site.

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