YouTube Defeats Copyright Lawsuit For Not Removing Users’ Videos Quickly Enough–Business Casual v. YouTube
The plaintiff posted videos to YouTube. It claims that TV-Novosti, which runs the RT Arabic channel, infringed its copyrights. The plaintiff sent takedown notices to YouTube for the allegedly infringing RT Arabic videos. “YouTube removed the First RT Video nine days after it received Business Casual’s complaint; the Second RT Video twenty-three days after it received Business Casual’s complaint; and the Third RT Video three days after it received Business Casual’s complaint.” RT Arabic submitted counternotices, but YouTube briefly terminated its account for accumulating too many strikes. YouTube determined its termination was unintentional, so it reinstated RT Arabic; plus other TV-Novosti channels remained up. Later, YouTube suspended the TV-Novosti account. Despite all of the back-and-forth, the plaintiff sued YouTube for copyright infringement–a very bold move. The suit goes nowhere.
Direct Infringement. The court describes what constitutes volitional conduct:
In the context of online platforms that host content uploaded or transmitted by third-party users, a platform cannot be liable for direct copyright infringement based on the allegedly infringing activities of its users unless the platform had some “deliberate role” in the alleged infringement, such that the platform morphed from a “passive provider of a space in which infringing activities happened to occur to an active participant in the process of copyright infringement.”
The court says YouTube lacked volition:
after it lodged complaints against the First, Second, and Third RT Videos, YouTube promptly took those videos off its platform and has kept them off the platform until at least the time that Business Casual filed its complaint. Furthermore, Business Casual alleged that although YouTube has automated processes to identify and flag videos containing copyrighted content, TV-Novosti intentionally circumvented these processes by applying certain editing techniques to the content that TV-Novosti allegedly copied. These allegations show that YouTube actively and diligently policed allegedly infringing activity on its platform and accordingly cannot support a plausible claim that YouTube volitionally caused any infringement.
This passage is murky. Direct copyright infringement is a strict liability tort, so YouTube’s efforts to “actively and diligently police” infringement should be irrelevant. Instead, the court is trying to say that YouTube took appropriate action at the time when YouTube might have switched from passive to active due to the takedown notices. Still, this interpretation of volition seemingly collapses direct infringement into contributory infringement because both doctrines essentially link liability with scienter from the takedown notices.
The plaintiff protested that YouTube’s takedowns weren’t very prompt because it took 23 days to act on the second DMCA takedown notice. In the DMCA safe harbor context, the caselaw may not be favorable to YouTube. 3+ weeks is a long time under its “expeditious” standard. As one court said, “Courts have determined that response times to remove infringing material from entities’ websites or systems ranging from 5 to 14 days are expeditious.” But here, the court is applying the standard for purposes of volitional conduct and direct copyright infringement, so the DMCA cases don’t directly govern the situation. That allows the court to say that the plaintiff “has not pointed to any authority to support the proposition that YouTube was under a legal obligation to conduct its investigation into Business Casual’s complaint on a more compressed timeline” (cite to VHT). Plus, “Business Causal has failed to claim plausibly that any purported delay by YouTube constituted active, volitional conduct that caused TV-Novosti’s alleged infringement,” so maybe there’s no maximum time period turnaround from takedown notices that convert passive conduct into volitional conduct?
As a bonus justification, the court notes YouTube’s standard TOS and says the plaintiff granted licenses to YouTube when it uploaded the videos. The plaintiff basically said “WTF? I didn’t grant any licenses to RT Arabia,” but the court says the YouTube TOS license is “broad.” Thus:
Under the plain language of the License, YouTube cannot be liable for directly infringing any copyrights associated with any content that Business Casual has uploaded to its channel. Although the argument that the License does not absolve TV-Novosti of liability for alleged infringement may support a claim of direct copyright infringement against TV-Novosti, it is unpersuasive here because YouTube has a clear and broad License to Business Casual’s content.
Whoa. The court seems to be saying that a copyright owner who uploads a video to YouTube essentially waives all infringement claims against YouTube over that video–a potentially massive disincentive for copyright owners to post their works to YouTube. Extending this logic to other services, it seemingly puts copyright owners into a dilemma about where they share their works if they think other users on that service might infringe.
The plaintiff argued that its direct infringement claim is bolstered by YouTube’s failure to show it’s entitled to the DMCA safe harbor (specifically the repeat infringer policy). The court’s like, “HUH? What part of ‘safe harbor’ do you not understand?”
The DMCA safe harbors provide potential defenses against copyright infringement claims where, but for the safe harbors, the plaintiff has a meritorious cause of action against the defendant for copyright infringement. But alleged failures to satisfy the conditions of a DMCA safe harbor provision cannot constitute a cause of action without a viable underlying claim for copyright infringement.
Contributory Infringement. The plaintiff didn’t allege that YouTube knew of the infringing activity before it sent the takedown notices, plus there’s no substantial participation because “YouTube promptly and permanently took each video down from the platform.” The court did not discuss what “promptly” means in the context of contributory infringement versus direct infringement or the DMCA.
Vicarious Infringement. “YouTube did not decline to exercise its right to stop Business Casual’s alleged infringement. To the contrary, YouTube promptly stopped the alleged infringement shortly after it learned of Business Causal’s allegations by taking the RT videos down.” Once again, no discussion of what “promptly” means here.
Implications
This is the damnest case. The plaintiff went straight after YouTube’s core business–something we don’t see very often. The court shut down this frontal assault emphatically. YouTube won without relying on the DMCA at all, even though this case is exactly what the DMCA safe harbor should cover; YouTube defeated two strict liability doctrines (direct infringement and vicarious infringement) essentially because it lacked scienter, which should be irrelevant to both doctrines; and YouTube got a court to treat an alleged 23 day takedown turnaround as “prompt” even though it might very well have not been “expeditious” under the DMCA standard. I’m not sure if the court’s precise reasoning will stand on appeal to the Second Circuit, but I also don’t see any way for the plaintiff to win this case, so the wiser move for the plaintiff would be to cut its losses here rather than pursuing the appeal.
The word “Russia” never appears in the opinion, but this lawsuit involves RT, one of Russia’s video propaganda arms. I’m not going to shed a tear over YouTube’s efforts to “deplatform” RT.
Case citation: Business Casual Holdings, LLC v. YouTube, LLC, 2022 WL 837596 (SDNY March 21, 2022). The complaint.
UPDATE: The court repeated many of its arguments in Business Casual Holdings, LLC v. YouTube, LLC, 2022 WL 17177970 (SDNY Nov. 22, 2022).