Viacom, FAPL and Amici File Briefs in Viacom v. YouTube Second Circuit Appeal

December 13, 2010 · by Eric Goldman · in Copyright, Derivative Liability

By Eric Goldman

[note: all of the briefs referenced in this post are linked in the case library at the bottom of the post]

Viacom and the FAPL have filed their opening appellate briefs in the Second Circuit appeal of Viacom v. YouTube. As Wired and others have pointed out, the standout line from Viacom’s brief was its empirically unsupported assertion that upholding the lower court ruling “would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many copyrighted creations.” Really…? I would find such hyperbole more convincing if Viacom hadn’t acquiesced to YouTube’s behavior post-May 2008 and wasn’t using it extensively today to create substantial value for itself.

Viacom’s brief shows that it’s not sparing any expense in this litigation. (Nor is Google, which has said it has spent $100M defending this lawsuit). Viacom has three high-priced Biglaw firms on the brief: Jenner & Block, Shearman & Sterling, and former Solicitor General Ted Olsen of Gibson Dunn.

A small but ironic tangent: In Ouellette v Viacom, a pro se litigant recently sued both Viacom and YouTube, putting them in the position of possibly jointly defending the lawsuit…if they can find a way to work together against a common enemy…

In addition to the litigants’ briefs, another 15 amicus briefs poured in. Michael Barclay has helpfully aggregated the briefs. See also the Justia page.

Three of the briefs, from AIPLA, Audible Magic and Vobile, support neither party. Audible Magic’s brief (which YouTube did not grant consent to file) is a sales pitch designed to respond to the district court’s implicit disparagement of its filtering technology. Vobile’s brief (which YouTube also did not grant consent to file) is also a sales pitch to explain how great its filtering technology is. APILA’s brief took an unusual (for them) pro-defendant position:

AIPLA urges this Court to affirm the district court’s holding that more than a generalized knowledge of infringement is required to deprive an Internet service provider (“ISP”) of the protection of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”)….the level of knowledge that is sufficient to strip the ISP of its protection under Section 512 of the Copyright Act, as amended by the DMCA is knowledge of specific instances of infringement. The district court’s holding is consistent with the legislative history of the DMCA and relevant case law. AIPLA urges this Court to reject Viacom’s broad attempt to deprive Internet service providers of the benefits of the safe harbor provisions of the DMCA based on generalized knowledge that infringing activity is occurring on a site.

The remaining briefs, all in support of the plaintiffs, include several from copyright owner agglomerations. Most of these briefs generally riff on the premise that the Angel of Death will descend upon the world if the lower court’s ruling is upheld. See, e.g., the BMI et al brief, which says:

Instead of providing protections for both copyright owners and qualifying service providers, the District Court has perversely turned the DMCA into a roadmap to build a business based on massive use of copyrighted works without paying for them. As a result, copyright owners – both large and small – lose control of their creations and are limited significantly in their ability to license their works, while their property is disseminated virally over the internet worldwide to anonymous users, without consent or compensation.

A little more drama: YouTube did not automatically consent to filing of the MPAA’s brief; instead, it withheld judgment until it could review the brief.

A few observations about the other briefs.

I’m sure you’re shocked to learn that Microsoft weighed in with a brief against YouTube. Is there any opportunity Microsoft won’t take to tweak its arch-rival Google–no matter how contrary to its own long-term interests?? Microsoft has many UGC businesses, yet as usual it emphasizes its software divisions’ interests over its online services’ interests.

One of the more interesting briefs was filed by eight “professors and scholars who, from various perspectives, focus their work on the economic incentives of legal liability rules, including questions about efficiency and deterrence.” They argue that willful blindness is bad from an economic standpoint. It’s a little hard to tell if this brief simply responds to a strawman argument (is anyone arguing in favor of willful blindness?). In any case, as far as I can tell, the brief mostly argues against the statutory allocation of responsibilities in 512(c). As a result, these arguments might be better directed towards Congress.

The Brotman/Cass/Nimmer (Ray, not David) brief covers similar ground, and it probably should have merged with the 8 professors’ brief. The Brotman et al brief makes a “least cost avoider” argument, which to me points in favor of YouTube. Recall that even Viacom and its high-priced and very smart battalion of attorneys couldn’t figure out which video uploads were authorized and which it thinks were infringing; yet they were in a way better position than YouTube to make that determination. Ironically, YouTube is doing many of the things the brief wants it to do (like filtering), so this further reinforces that this brief should have been in support of YouTube, not Viacom.

I was amused by the poorly written International Intellectual Property Institute amicus brief by Bruce Lehman, who held key IP-related roles in the Clinton administration. Attempting to resurrect failed arguments from the infamous copyright-maximalist “Green” and “White” Papers from the 1990s, the brief makes the stunning argument that the DMCA online safe harbors only protect data carriers, not content providers. For example, the brief says: “This Court should respect congressional intent and not extend the DMCA’s safe harbor to include content providers.” What???

The seven IP professors’ brief, by Marquette Law professor Bruce Boyden, argues that the district court did not properly consider the “red flags” of infringement standard. I exchanged emails with Bruce about this brief. In one of my emails, I wrote:

In particular, the “red flags” provision never contemplated that the copyright owners would post their own content designed to look like stolen content and in such a way that the legal department (and outside lawyers) couldn’t figure out that their own marketing department had posted the content. As a result, I personally don’t think it’s possible to have “red flags of infringement” any more–whatever it meant initially–because even things that look like they are ripoffs might in fact be legitimate.

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

* 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.