

YouTube wins case against Viacom - yanw
http://googleblog.blogspot.com/2010/06/youtube-wins-case-against-viacom.html

======
grellas
A few comments on this summary judgment ruling:

1\. The decision came at the trial-court level and is not binding on other
courts (though it might be persuasive). It is a summary judgment, meaning that
the judge decided it before a trial could be held based on affidavits
submitted by the parties. This also means that it will be easier to reverse on
appeal than would a decision after trial.

2\. The decision puts the burden on a copyright holder to identify item-by-
item each claimed instance of copyright infringement and to report it under
the DMCA. It leaves the hosting party in a position of being able to ignore
what may or may not be infringing on its site _so long as_ it responds
promptly and faithfully to take-down notices for specific items.

3\. The court sharply distinguished precedents concerning sites that had
facilitated P2P copying, concluding that those cases had nothing to do with
the DMCA safe harbor. Viacom had obviously played up those cases, essentially
arguing that the defendants here profited from the regular and widespread
posting of infringing materials on the YouTube site and therefore should be
guilty of some form of contributory infringement liability. The court stiff-
armed all such arguments by saying, in effect, "no, that's all different -
Google's sole obligation here was to comply with DMCA and, if it did, it can't
be held liable as a contributory infringer."

4\. The court also dismissed the idea that Google could be held liable for not
doing wholesale take-downs upon receiving a general notice that broad
categories of materials on its site were potentially infringing (in essence,
holding that a hosting site cannot possibly be in a position to determine what
truly is or is not infringing just because it falls in some category or other
of materials that might be infringing). Thus, the court refused to interpret
DMCA in a way that puts the hosting party in a position where it must actively
monitor its site for offending materials apart from its obligation to respond
to specific take-down requests.

5\. What is really involved here is a policy dispute over the safe-harbor
protections of DMCA: Google says it is enough that it complies with take-down
requests; Viacom says Google should still be liable if widespread posting of
infringing material is regularly going on and if Google is profiting from that
activity.

6\. Though the judge did not make formal mention of it in his decision, it
cannot have helped Viacom that it appears to have had dirty hands in this
mess, in part by having its own agents upload a good number of the allegedly
offending materials to the site. This sort of conduct really stinks of a setup
and prompt judges to shape their formal legal reasoning in a way that reflects
their disapproval of such misconduct.

7\. On a final note, summary judgments are notoriously difficult to uphold on
appeal and so this will be appealed and the outcome of that appeal will be
anybody's guess. Therefore, an important victory for Google but by no means
any sort of final one.

~~~
ecuzzillo
General legal question: If you're a judge, you presumably think you're right,
and so you'd want your rulings to be upheld. So, if it's harder to appeal
after-trial rulings than summary rulings, why not just make up your mind
beforehand, but let the trial go through, and then rule afterward, and then
it's easier to uphold? It's horrible for everybody else, but you aren't paying
the legal fees.

(Not that I think judges _should_ do this, just wondering about the
incentives.)

~~~
grellas
A bit of legal theory here.

When a case is filed, a party brings a complaint, which sets forth allegations
constituting claims for relief. The allegations are factual in nature but are
generally stated.

A party who has been sued ultimately responds to the complaint by filing an
answer in which he admits or denies the allegations made against him. In the
normal case, most material allegations are denied.

The allegations that have been denied form the factual issues in the case,
which ultimately must be decided by a trier of fact at a trial. When the facts
have been so determined at a trial, the law is applied to them to determine
whether one or more claims has been proved as to all of their elements
(liability and damages or other relief sought) and, if so, judgment is entered
on such claims against the wrongdoing party.

The time between the filing of a complaint and the date of a trial is
typically a year or more.

Between the original filing and the trial, discovery is conducted by the
parties. Discovery is done through a range of legal mechanisms that allow each
party to discover what evidence underlies another party's case. This can be
through written interrogatories, document requests, admission requests,
depositions, etc. The idea behind discovery is to find out what admissible
evidence exists to support the allegations that are at issue in the case.

After a reasonable period has passed for each party to conduct discovery, any
party can move for summary judgment if it wishes. This is a tough motion to
win. In essence, a party asking for summary judgment is telling the judge
that, based on all the undisputed evidence that will be before the court in
connection with the motion (evidence submitted by the moving party and by the
opposing party), the moving party will be entitled to judgment "as a matter of
law." If the court agrees that there are no material undisputed facts relating
to all the essential pieces of a claim in the case, or if the undisputed facts
show that there is an insuperable barrier to relief on a party's ability to
prove a claim, the court can make a _legal_ determination that such a claim be
disposed of then and there and without need of allowing that claim to reach
trial.

At a trial, it is normally up the "trier of fact" to resolve all _factual_
disputes framed by the justiciable issues in the case. That usually means a
jury (assuming one or more parties has demanded a jury trial). And, since the
right to a jury is constitutionally guaranteed, a judge has no authority to
supplant the authority of a jury to determine factual disputes at the trial.
If no one has demanded a jury, or if the nature of a claim is such that is not
triable to a jury, then the judge acts as the trier of fact in lieu of a jury.
In either case, when a case presents disputed material facts that need to be
resolved before it can be decided, the resolution of such facts is _always_
left for trial and cannot be short-circuited by a judge before trial.

Thus, when (as in this case) a judge is presented with a summary judgment
motion, the judge cannot dispose of any claims without first finding that the
material facts relating to the claim being ruled upon are undisputed. If, in
the course of the motion, a party presents evidence that, if believed at
trial, would support that person's position and potentially support a judgment
in that person's favor, then the judge must hold that disputed facts exist
that preclude the claim's being dismissed summarily before trial.

That is why summary judgment is so hard to get. In virtually every case that
is fought in court, a party will have something to present in terms of
evidence that might allow that party to win at a trial. The evidence may not
be strong or particularly credible, but a court has no power to weigh the
strength of evidence in deciding whether to enter summary judgment. If
contradictory evidence is presented, and is material to an issue, then summary
judgment is automatically denied.

In this case, Viacom basically admitted that, with respect to every take down
notice involved in the case, Google had acted promptly to remove the offending
material. The judge also acknowledged that Viacom had presented evidence that
(if believed) suggested that Google knew that there was widespread copyright
infringement on its YouTube site and that it even encouraged such infringing
activities so as to profit from them. Having so assessed the evidence, the
judge interpreted the DMCA in a way that this latter evidence was irrelevant
to any issue in the case - that is, it was not material to the resolution of
the infringement claims that Google might have wanted to profit from
infringing activity because all that mattered under DMCA is that Google always
acted quickly to do the take downs whenever Viacom flagged an offending item.
Having so construed the law, and given that Viacom had no evidence to dispute
the fact that Google at all times acted promptly to do the take-downs, the
judge held as a matter of law that there was nothing left for a jury to decide
at a trial and that the judge could therefore enter a judgment on such issues
summarily before trial for Google and against Viacom.

In this context, a judge would not have any particular incentive normally to
avoid entering summary judgment just to try to make any ultimate ruling more
appeal-proof. If the judge here, for example, had denied the motion and let
the case go to trial, this would simply have put a jury through a useless
exercise of trying to determine certain facts that the judge did not regard as
relevant anyway. In the end, thinking as he did, this judge would have wound
up with the same result in any case.

When considering incentives generally, though, it is true that is generally
"safe" for a judge to deny summary judgment in most cases, even when a party
has otherwise made a pretty compelling case, because that decision is not
appealable and the net effect of the denial is to force the parties to go to
trial. In such a case, in order to protect his record and avoid the potential
for reversal on appeal, a judge essentially "kicks the can down the road" and
fails to do the right thing that would save all parties a great deal of time,
effort, and expense. This does unfortunately happen and is a source of great
frustration to litigants in some cases. It also means that meritless cases can
get to a full jury trial, where the pressure to settle is great just because a
party would rather pay at that point rather than take unnecessary risks with
what a jury might do.

~~~
ramchip
_The allegations are factual in nature but are generally stated_

Minor thing, but could you clarify this statement? Do you mean "usually
stated", or "stated in a general manner"? I'm unsure about the legal meaning
of the words.

~~~
pmccool
Stated in a general manner. What's being alleged rather than the evidence to
support it.

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perlpimp
What court this judgement was granted in? It is supreme court? if not, can't
it be appealed all the way.

~~~
sant0sk1
District court of New York.

[http://static.googleusercontent.com/external_content/untrust...](http://static.googleusercontent.com/external_content/untrusted_dlcp/www.google.com/en/us/press/pdf/msj_decision.pdf)

~~~
Natsu
So if memory serves (IANAL, but I did take a class on court procedure a long
time ago), they can appeal this to the district court of appeals. I believe
that SJ motions are dispositive, so they can appeal it immediately, too.
Viacom almost certainly will, too. EDIT: I was confused. It says they
dismissed the whole case, not merely a part of it. So yeah, Viacom will almost
certainly appeal ASAP.

So this is still pretty far below the Supreme Court (which might or might not
be willing to grant cert; they don't have to hear just any old case) and
there's likely to be quite a bit of legal wrangling to go through. Perhaps
even years worth, unless they can settle.

Google has been smart from what I've seen in terms of pointing out that the
relevant part of copyright law is whether someone has permission to post
something, and that's not something you can determine algorithmically. Even
Viacom's lawyers screwed that up, after doing due diligence, and had to remove
Viacom-posted clips from the case. Twice.

~~~
Locke1689
We have to see what grounds they appeal the case on but unless there is a
significant Constitutional question in play SCOTUS rarely grants cert.

~~~
Natsu
This doesn't get appealed to the Supreme Court (yet). This would next go to
the District Court of Appeals for that circuit (and would later get appealed
en banc) unless there's some point of law I don't know about that's special to
this case. Which is possible, given that IANAL, but I think this is a pretty
straightforward copyright case, so I'm not sure where else they could go
without coming up with some new claims.

You don't get to appeal to the Supreme Court until you've exhausted all your
other appeals. And there aren't many instances where SCOTUS has original
jurisdiction (those are _very_ rare, and in that case you go straight to the
Supremes rather than dealing with lower courts).

But, no, I don't think they'll grant cert (though you never know). Viacom
flamed out on summary judgment. IMHO, this is more like SCO where you have an
angry litigant who will exhaust all appeals rather than admit defeat, which is
why I feel that appeal is inevitable.

Also, they'll be lobbying lawmakers to change the law. You can bank on that.
They're already working on the Obama administration from what I can see, given
that piracy crackdown they promised.

~~~
Locke1689
Yes, I was simply stating that the grounds for appeal are usually similar, if
not identical, to the grounds for further appeals. Given that, even if Viacom
were to fight this up the chain, it is unlikely that they'll grant cert if
there isn't a Constitutional debate or conflicting precedent. In this case,
since it was SDNY, the case appeals to 2d Cir.

------
chris24
Viacom has posted a brief response on their website:
<http://news.viacom.com/news/Pages/summaryjudgment.aspx>

~~~
jurjenh
Seems like they were already settling in for the long haul anyway:

 _This case has always been about whether intentional theft of copyrighted
works is permitted under existing law and we always knew that the critical
underlying issue would need to be addressed by courts at the appellate levels.
Today's decision accelerates our opportunity to do so._

~~~
JoeAltmaier
Sounds like they are going to challenge the law, not Google.

------
danielrhodes
This lawsuit actually goes much further than just Google: if the judge had
decided that the way YouTube was going about DMCA takedowns was incorrect, any
website/service provider would have to moderate user submitted content before
allowing it on the site since there was precedent in the interpretation of
that law.

------
MikeCapone
This is big, even if only one battle in a larger war.

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Scott_MacGregor
Congratulations and way to go YouTube!

Here is a video (with a cute girl) of some typical YouTube music pirates:

<http://www.youtube.com/watch?v=wh1nU7SeYg0>

~~~
jamesbritt
I went looking for a topical remix of Der Untergang but, sadly, there does not
seem to be one.

Yet.

------
pmccool
What happens if Viacom appeals and wins? Presumably it gets sent back for
trial or something?

~~~
sethg
Yeah—as grellas says above, a ruling on summary judgement basically says “the
law is so totally on this guy’s side that there’s no point to having a trial
to decide what the facts are”, and all an appeals court has to do is say “umm,
actually, if the facts are X or Y or Z then this guy loses, so go have a
trial”. And after the trial, whichever side doesn’t like the verdict can
appeal again.

------
dkuchar
Viacom won't take this lying down (it will set a hell of a precedent), but
great win for YouTube and the future.

~~~
nuxi7
Actually the interesting thing is that a good chunk of the ruling is citing
multiple existing precedents stating that youtube is not guilty of
contributory infringment.

So it seems the precedents are there, but only the big guys like Google can
stand up and get them recognized in court.

~~~
_delirium
The cost of litigating a case like this is pretty unfortunate. Some of the
more on-point precedents were recently set by Veoh (cited on pp. 24-27 of the
YouTube decision), who won their case and then went bankrupt almost
immediately afterwards: [http://www.wired.com/epicenter/2010/02/veoh-files-
for-bankru...](http://www.wired.com/epicenter/2010/02/veoh-files-for-
bankruptcy-after-fending-off-infringement-charges/)

~~~
nuxi7
Ah, even if you win, you lose.

After I made my previous post I was pondering what Viacom hops to win in this
case. The obvious thought is that they want to gut the DMCA safe harbor, but
this seems like it would make combating piracy harder in the long run.

The safe harbor is the carrot offered so that service providers respond to
DMCA takedown notices. Without that carrot, or with it much farther away,
service providers are less likely to cooperate with Viacom.

Viacom is setting the playing field for service providers like this: 1\.
Dedicate resources to DMCA takedowns and then spend millions defending your
safe harbor status anyway, or 2\. Spend millions in copyright fines

This is a bad playing field to set, the DMCA takedown is a pretty sweet deal
for Viacom. Why spoil it by making option 2 so attractive to service
providers? And then option 3 dawned on me:

3\. Don't allow user content

I don't think this case is really about copyright at all. It seems to me that
Viacom's real goal is just to squash a competitor using the courts.

------
lincolnq
I didn't hear about this case. Summary?

~~~
jmillikin
Viacom uploaded promotional materials to YouTube, then sent YouTube DMCA
notices to take them down, then uploaded them again, then sued YouTube for
hosting copyrighted content.

If you had to re-read that sentence a few times, don't worry, that's normal.

~~~
joubert
Geez. I wonder which lunatic at Viacom thought of that. Do they think is is
Cirque du Soleil?

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ck2
Looks like the only winners in the fair-use wars will be multi-billion dollar
corporations.

So will viacom go directly after the uploaders next or does this lawsuit
prevent that? Because end-users have been proven to lose most of the time with
far less money to defend themselves.

~~~
ars
What?

Google won because they did nothing illegal, end users loose when the do
something illegal.

Money does help in lawsuits, but you really think end users loose due to lack
of money? Even when their defense was donated?

~~~
ck2
Yes, when there are staggering judgments against users, I think something is
fishy, and I have to assume poor defense (ie. a million dollars for 30 songs).
It's designed to scare the average person into settling for several thousand
dollars because they cannot afford a defense at all.

------
TotlolRon
Those who think they can never do wrong won against those who can never do
right. Thrilling.

~~~
jakevoytko
This is very exciting! In this case, I want the law on Google's side. Some of
the provisions of the DMCA are ridiculous, but the DMCA claim/counterclaim
process is better than alternatives, like vetting all user submitted content
up-front. Sites depending on user-submitted content don't have to worry about
undue burden.

