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.
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.)
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.
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.
Yes, I think it is and it appears therefore that the judge was correct in his interpretation of the statute as worded.
Viacom and other rights holders will likely play out the policy debate before Congress, arguing that DMCA should be amended to impose broader obligations on hosting parties (such as the obligation to remove whole categories of materials on request). Of course, Viacom will also argue on appeal that the DMCA already imposes such broader obligations (as they unsuccessfully argued to the trial judge here).
Removing categories of materials on request assumes categories exist.
How would those categories be created if Google can't pro-actively scan content without running afoul of Safe Harbor's requirement that providers not vet material beforehand?
Am I misunderstanding something? Because it sounds like arguing for a "Category Take Down" is just a round-about way of arguing against Safe Harbor altogether.
Loooking at a site like Justin.tv, and this judgment, even with the kind of blatant infringement visible here: http://www.justin.tv/directory/all
Would you, as their lawyer, feel quite safe that they would win any potentials lawsuits against them?
And given the obviousness of the infringement does the fact that there are money-making ads on the infringing content make it so they're knowingly profiting from infringement, thus invalidating the DMCAs safe harbor?
To be honest, it doesn't matter what they are hosting. The important thing from a legal point of view, is how they respond to DMCA takedown notices. If you have 100 infringing pieces of material on your site and you only get 1 takedown notice, you only have to remove the 1 piece of infringing material.
The law is pretty clear. It's not the webhost or ISPs obligation to police it's own content. That would put the ISP or webhost in the position of having to determine who the copyright owner of every piece of material on their site was. It is the copyright owner's obligation to send a proper DMCA takedown notice when infringing material is found.
I'm curious to know, what do you think will happen to the safe harbor provision of the DMCA? Do you think they are at risk for being amended to more conservative terms? Or is there a growing tide within the legal community to preserve its current state due to the proliferation of online media?
It seems (recently) the line has been drawn on what is considered "direct financial benefit", with the verdicts going against LimeWire and for Google.
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.
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.
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.
I'd have to look into it further, but I think getting a summary judgment is pretty damning. There are cases that get a summary judgment that do go onto getting overturned by the Supreme Court, but statistically those are, of course, quite rare.
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.
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.
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.
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.
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...
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.
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.
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.
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.
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.
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.