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April 2012

Viacom v. YouTube: Not a Surprise

150px-YouTube_logoAs I mentioned below, the long-awaited Second Circuit decision in Viacom v. YouTube and its companion case, Football Association Premier League v. YouTube, was handed down today, with the Second Circuit reversing the district court opinion in part, affirming in part, and remanding for another round of summary judgement motions (yeehaw!) consistent with the opinion. Eric Goldman has some early analysis. Here’s my take, based on a single read, so I reserve the right to “revise and extend” my remarks.

I’ve got several points I want to make:

  1. The overall outcome is not a surprise, to me at least.
  2. On the issue of “What, beyond responding to individual takedown notices, do ISPs have to do to maintain their Section 512 immunity?” the answer is a) something — which is a win for plaintiffs — but b) not much, which is a win for defendants.
  3. The court I think identifies the correct role for “red flags” — at least, it was the one argued for in the amicus brief I drafted — but on the question of what constitutes “knowledge” I think the opinion is less successful. The distinction drawn between “specific vs. general” knowledge, both here and in connection with secondary liability generally, is I think not helpful and in any event will soon break down.
  4. The court helpfully ducks the massive red herring, subject of a considerable amount of argument in the briefs, blog commentary, and mentioned in the opinion below, over whether the fact that some allegedly infringing works may in fact be authorized should somehow bear on the interpretation of Section 512.
  5. It’s interesting and perhaps unsurprising that the court avoids legislative history and purpose as tools for interpreting the statute — with one significant (and I think salutary) exception.
  6. Just like the exclusionary rule sometimes warps Fourth Amendment criminal procedure law, there is reason here to be concerned that statutory damages might warp the substantive law governing the liability of ISPs.
  7. I have some higher-level thoughts on what the decision means for content owners and ISPs.

That’s a pretty long list, actually, so I’m going to have to break this up into multiple posts.

The Outcome Is Not a Surprise

The district court opinion essentially read portions out of the statute.

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