On April 18, 2013, a federal district court judge again granted summary judgment in favor of YouTube in a copyright infringement lawsuit originally filed by Viacom, Paramount Pictures, and others in 2007. Viacom Int’l Inc. v. YouTube, Inc., No 1:07-cv-02103-LLS (S.D.N.Y. Apr. 18, 2013).

The plaintiffs had claimed that YouTube had infringed their copyrighted movies, television shows, etc.  YouTube defended its actions by stating that the federal copyright law’s “safe harbor” applied because YouTube was merely acting as a service provider, it had no knowledge of infringing materials, and, when informed precisely of infringing materials, it promptly removed them.

In 2010, the Southern District of New York ruled in favor of YouTube’s owner, Google, on a summary judgment motion, finding that the safe harbor protected the conduct at issue. Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).  In 2012, the Second Circuit affirmed in part and vacated and remanded in part. Viacom Int’l Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).

The Second Circuit noted that the summary judgment evidence included “internal YouTube communications that do refer to particular clips or groups of clips” that were infringing.  As a result, the Second Circuit found:  “Upon a review of the record, we are persuaded that the plaintiffs may have raised a material issue of fact regarding YouTube’s knowledge or awareness of specific instances of infringement”

That court remanded the case back to the trial court on three issues:  (1) whether YouTube had knowledge or awareness of any specific infringements; (2) whether YouTube willfully blinded itself to specific infringements; and (3) whether YouTube had the “right and ability to control” infringing activity, which would remove its conduct from the safe harbor.

On April 18, 2013, the trial court granted summary judgment to YouTube on all three issues.  The court found that the plaintiffs had not proven that YouTube knew or was aware of specific infringements, and that the examples offered to show willful blindness “give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them.”

With respect to the third point, the court ruled that “knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor.  To forfeit that, the provider must influence or participate in the infringement.”  The court found no evidence that YouTube induced its users to submit infringing videos or “otherwise interacted with infringing users to a point where it might be said to have participated in their infringing activity.”

Viacom has announced that it intends to appeal. Jonathan Stempel, “Google again beats Viacom in YouTube copyright case,” Reuters, Apr. 18, 2013.  In the meantime, content owners should note that this decision applies only to those sites that fulfill the statutory requirements for the safe harbor. The requirements for the safe harbor can be found at 17 U.S.C. § 512(c).

Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.