YouTube and its Amici File Their Briefs in the Viacom v. YouTube Appeal

By Eric Goldman

I’m catching up with the YouTube-side briefs in the Viacom v. YouTube appeal. (See my analogous post on the Viacom-side briefs). Once again, Michael Barclay has been kind enough to organize the briefs into a single post.

YouTube’s brief, another fine piece of advocacy, didn’t contain anything surprising to me on my cursory review. Then again, YouTube has the advantage of a solid district court win, so it doesn’t have to get too fancy. I did like that YouTube is emphasizing that even Viacom’s lawyers can’t figure out which clips were authorized and which weren’t. As the brief says: “Even Viacom’s lawyers were tripped up by Viacom’s stealth marketing: in the district court, they submitted two documents under penalty of perjury that incorrectly swore that Viacom had not posted any of the clips at issue.” To me, this is pretty much dispositive on the question of whether YouTube had–or could have–“red flags” of infringement.

13 amicus briefs came in for YouTube. Overall, the briefs were pretty well done; I thought none of these briefs were “clunkers” (I would not say the same for the Viacom stack). However, I also thought many of the briefs were redundant with each other, plowing over the same statutory language, legislative history and relatively small number of precedent cases. I’m sure a law clerk or two will get glazed eyes seeing the same basic arguments presented over and over again, no matter how elegantly those arguments are expressed. A number of the briefs highlighted the recent Wolk v. Kodak case, and I wonder if the Second Circuit will find it interesting.

Some specific observations about the amicus briefs:

The Anaheim Ballet brief is from content owners with over 3.3 billion YouTube views, a nice touch. To similar effect is the NAMAC et al amicus brief–a not surprising convergence because the briefs both came from different Samuelson clinics (Anaheim Ballet from the one at Fordham; NAMAC from the one at Berkeley).

The Anaheim Ballet brief argues the “Safe Harbor provision acts as a check on consolidation in traditional media by fostering growth of OSPs which serve as competitors for new content and viewers,” and this allows the amici to “avoid the old media’s bottlenecked model and connect directly with their audience.” I like the “power of the long tail” sentiments, although the brief seemed animated by the 1990s view that the Internet was going to cause widespread disintermediation. It has disintermediated folks, all right, but in their place are new intermediaries with their own agendas–including YouTube. For more on this, see my Brand Spillovers article.

The Consumer Electronics Association amicus brief, from Michael Barclay and UNC prof. Deborah Gerhardt, does a nice job building off Mark Lemley’s article in recounting the history of paranoid and mistaken content owner overreactions to new technology.

The Human Rights Watch et al amicus brief argued that (1) “Social media platforms, including YouTube, have become vital tools in global struggles for human rights, free expression, and political liberty” and (2) an expansive copyright liability scheme would threaten that benefit. I wasn’t convinced that the conclusion in (2) followed from the premise in (1) (47 USC 230 plays a much bigger role on this front than 17 USC 512 ever will), but even the premise in (1) was helpful in explaining the legitimate uses that people make of YouTube.

I joined the IP and Internet Law Professors amicus brief by David Post and Annemarie Bridy. The brief reinforces the problems with “red flags of infringement” and the “least cost avoider” argument when content owners are spiking the databases with their own content.

I was spiritually in tune with the National Consumers League et al amicus brief, which made the argument that YouTube has become an important venue for consumer product reviews, and some of those reviews may use copyrighted material. Thus, the brief argues that without the notice-and-takedown scheme, these reviews would never make it to the web due to publisher liability fears. While this is unquestionably true, as we just pointed out in the doctoredreviews.com website, consumer reviews are vulnerable to bogus removal even in a notice-and-takedown world. I’ll get to the misuse of IP doctrines to suppress consumer reviews in an academic paper in a few years.

I loved how the National Venture Capital Association amicus brief started out:

Twitter. eBay. Facebook. Yelp. Google.

These companies are the stars of the Internet, contributing billions of dollars a year to the American economy. They exist only because the American venture capital community risked investing in them, long before they had made a nickel, while they were still in the “inventor’s garage.” And they exist only because the DMCA’s safe harbor, 17 USC 512, shields them from liability for their users’ activities, providing investors with the certainty that they will not face the sort of ruinous damages Viacom seeks in this case.

That’s really elegant prose; but I’m pretty sure at least some of it is counter-factual. I’d have to doublecheck when these companies first got VC funding, but I think some of them got the money well after they were out of the garage and actually earning revenue. And although it may not disprove the assertion, I would note that eBay was already a pretty successful company before 17 USC 512 even got enacted.

The Public Knowledge amicus brief responds to the Audible Magic and Vobile amicus briefs, both of which were sales pitches for their services. Public Knowledge points out that regardless of the accuracy of filtering technology in identifying third party content, filters can’t make good judgments about the legitimacy of content republication. The brief also scored this point about error rates with identification:

Audible Magic, for instance, notes a 99% correct identification rate, with a false positive rate of better than 1 in 10,000….However, this percentage must also be measured against the volume of material to which it is being applied. YouTube claims that 35 hours of video are uploaded each minute of every day….Assuming that these videos are limited to 15 minutes in length, each year would yield at least 73,634,400 uploaded videos. If

just 1 in 10,000 are incorrectly identified as matching submitted videos when they do not, this could mean that every year, some 7,363 videos would be flagged for infringements when they did not even match a clip provided by a cooperating copyright holders.

UPDATE: Michael Barclay has more comments about the briefs.

The case library (also see the EFF’s helpful library):

* Reply brief of the other appellants

* Viacom’s reply brief

* Public Knowledge amicus brief in support of YouTube.

* Professor Michael Carrier’s amicus brief in support of YouTube.

* National Venture Capital Association amicus brief in support of YouTube.

* National Consumers League et al amicus brief in support of YouTube.

* NAMAC et al amicus brief in support of YouTube.

* MP3Tunes amicus brief in support of YouTube.

* IP and Internet Law Professors amicus brief in support of YouTube.

* Human Rights Watch et al amicus brief in support of YouTube.

* EFF et al amicus brief in support of YouTube.

* eBay et al amicus brief in support of YouTube.

* Consumer Electronics Association amicus brief in support of YouTube.

* CCIA/NetCoalition amicus brief in support of YouTube.

* Anaheim Ballet et al amicus brief in support of YouTube.

* YouTube’s opening brief

* My comments on the Viacom amicus briefs

* MPAA/IFTA amicus brief in support of Viacom. CBS amicus brief in support of Viacom just endorsing the MPAA/IFTA brief.

* BMI et al amicus brief in support of Viacom.

* Business Software Association amicus brief in support of Viacom.

* Microsoft/EA amicus brief in support of Viacom.

* Advance Publication et al amicus brief in support of Viacom.

* Brotman/Cass/Nimmer amicus brief in support of Viacom.

* Washington Legal Foundation amicus brief in support of Viacom.

* Seven IP professors’ amicus brief in support of Viacom.

* International Intellectual Property Institute amicus brief in support of Viacom.

* Eight professors’ amicus brief in support of Viacom.

* American Federation of Musicians et al amicus brief in support of Viacom.

* Vobile amicus brief in support of neither party.

* Audible Magic amicus brief in support of neither party.

* APILA amicus brief in support of neither party.

* FAPL’s opening appellate brief.

* Viacom’s opening appellate brief.

* District court opinion granting summary judgment to Google. My blog post.

* Viacom’s summary judgment motion. My blog post.

* YouTube’s summary judgment motion. My blog post.

* FAPL’s initial complaint. My blog post.

* Viacom’s initial complaint. My blog post.

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