Today, a federal district court in New York granted YouTube’s
motion for summary judgment in its long-running litigation with Viacom. Viacom and—separately—the
English Premier League sued YouTube and Google alleging that they were liable
for infringing works that users posted on YouTube. Google is understandably trumpeting
its victory though it of course is subject to appeal to the Second Circuit.
The issue in the case focuses on the scope of the Digital Millennium
Copyright Act’s safe harbor for online service providers set forth in section
512 of the copyright
statute. Section 512 is pretty chunky but most of the court’s analysis
focuses on section 512(c). That subsection insulates service providers from
liability “for infringement of copyright by reason of the storage at the
direction of a user of material that resides on a system or network controlled
or operated by or for the service provider” if the service provider can meet a
three-part standard set forth in that subsection.
One part of that standard turns on the knowledge of the
service provider of the underlying infringing activity and most of the court’s opinion
focuses on how to assess that knowledge. The district court ultimately rejects
the notion of generalized knowledge of infringement and instead focuses on “knowledge
of specific and identifiable infringements of particular individual items.” We
could have a lively discussion about the right way to structure knowledge of
user infringement and whether the district court reads the statute correctly but
I want to direct my attention elsewhere.
Quoting the statute, the legislative history and then the
ensuing discussion of knowledge occupies slightly more than the first 22 pages of
the 30-page opinion. I went to direct my attention to, as the court puts it “other
points” and in particular to the question of exactly what protection emerges
from the “storage” language in 512(c).
Consider a hypothetical. An online service provider offers
backup storage for its customers. Customers copy files to a centralized server
to protect against a local hard drive failure. Some customers upload files that
infringe the rights of copyright holders, as might occur, for example, if a
customer scanned an entire book so that it could have an electronic copy of the
book. Assume such scanning to be infringing though I do understand that some contend
that such full-scale digitization might be fair use under some circumstances.
The service provider notices that through its customers
uploads it has amassed a very nice collection of digitized books. It decides to
go into the print-on-demand business: customers check to see if a copy of the
book is stored centrally and if so the service provider print outs a copy on
demand and overnights it to the customer. Are these printed books protected by
the storage safe harbor in section 512(c)?
I assume that the answer to that is no. The fact that part
of your business may be protected by section 512(c) doesn’t insulate any other
aspect of your business from potential charges of copyright infringement. Indeed,
I assume that the YouTube district court agrees with me on this as it is
crystal clear in stating that to the extent that YouTube’s activities go beyond
the scope of storage and “allied functions” then normal principles of copyright
infringement apply and YouTube is outside the safe harbor of section 512(c).
The district court’s analysis focuses on the definition of
service provider and 512(k)(1) and takes the breadth of that definition to
indicate that more than storage must be protected in the safe harbor: “[s]urely
the provision of such services, access, and operation of facilities are within
the safe harbor when they flow from the material’s placement on the provider’s
system or network: it is inconceivable that they are left exposed to be claimed as unprotected infringements.”
It is certainly true that more than storage is protected.
Indeed, 512 actually provides four well-defined safe harbors: for transitory
digital network communications in 512(a); for temporary storage or system
caching in 512(b); for permanent storage under the control of users in 512(c);
and for information location tools under 512(d). The definition of service
provider needs to encompass each of those four situations but that tells us little
about what, if any, allied functions beyond those set forth in 512(a)-(d) are
protected.
Change my hypothetical slightly. Switch from books to video
and have the service provider offer a video-on-demand business rather than a
print-on-demand business. Should we think that the analysis changes? We have
now reached the nub of the case that the Second Circuit will have to decide, namely
whether a website that enables public performance of works uploaded by users is
engaging in simple storage or is taking a step beyond that as occurs, I
believe, in my print on-demand hypothetical.
Recent Comments