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The YouTube Lawsuits: They’re Not Over

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While one phase of the Viacom-YouTube lawsuit ended when a federal judge sided with YouTube this June, agreeing to its request to dismiss all claims, the appeals process continues. At issue was whether or not YouTube was knowingly infringing on copyrights by allowing site members to post videos that used copyrighted video and audio.

While the Viacom lawsuit was well publicized, the judge in the case actually heard its arguments in tandem with another similar lawsuit filed on behalf of the Premier League, the French Tennis Federation, the National Music Publishers Association, and other copyright holders. This putative class action lawsuit (called such because it hadn't gotten to the point of being certified as a class action lawsuit) was rejected along with Viacom's lawsuit.

The judge's decision, based on the Digital Millennium Copyright Act (DMCA) was that as long as YouTube complies with takedown requests filed by copyright holders, it's doing all it needs to do. The argument raised in appeal, however, is whether or not that's really all a site like YouTube needs to do.

"They've done a deliberately miserable job," asserts Charles Sims, an attorney at Proskauer Rose, LLP, the firm representing the Premiere League et al.

YouTube isn't supposed to merely act on takedown notices, Sims says, but also act on its own knowledge. When his clients send a takedown notice with a specific URL, he says, and let YouTube know that there are many similar clips to that one posted on the site, YouTube refuses to search for them.

"They clearly have the tools and the technology to search for additional copies of any one thing we identify to them," Sims says.

Also, while YouTube uses audio fingerprinting to detect copyrighted music used in videos, it only makes that technology available to record labels that make deals with it, Sims says.

Sims filed an appeal on December 3 in the Second Circuit. YouTube will file a response in March, he says, and the case should reach court in the fall. Sims believes his appeal has a strong chance of moving forward as he doesn't believe the original judge understood the statute in question. The judge didn't site evidence in his ruling, Sims says, and he believes much evidence was ignored. While the DCMA provides safe harbor to Internet service providers, Sims says safe harbor wasn't meant to apply to companies knowingly hosting illegal material. The company knows premium music and sports attract viewers, so it does the minimum it can do to keep that content on the site, Sims says.

While he hasn't given an amount yet that he's looking for in damages (since this isn't yet a class action suit), Sims says that his clients are entitled to be paid for their premium content.

YouTube's corporate communications department didn't answer a request for comment.

While many in the online video industry cheered the dismissal this summer, it remains to be seen whether or not that decision will hold. If Viacom and The Premier League win out, video site owners will need to be much more vigilant about the content they host.

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