ArtsWatch: YouTube Safe Harbor, Round Two

Appeals court finds 2010 summary judgment for YouTube, against Viacom, was premature
April 09, 2012 -- 7:14 am PDT
By Philip Merrill /

In recent news ...

On April 5 the Second Circuit Court of Appeals rejected some of the reasoning used by the Southern District of New York's U.S. District Court in 2010 when it granted YouTube summary judgment against Viacom's infringement claims. At the time, Viacom expressed eagerness for the appellate process and its hopes were realized now that the higher court has provided new guidance on ISPs' safe harbor protections. The District Court must reconsider the existing factual record, taking a fresh look at the service's "knowledge or awareness of any specific infringements" and whether YouTube "willfully blinded itself to specific infringements." The lower court must also consider whether new discovery of evidence is needed to find additional facts pertaining to the video site's "'right and ability' to control infringing activity" as well as a narrower issue of whether any of the video clips in the lawsuit were part of a third-party syndication deal. Consumer advocates were pleased that the ruling did not impose new requirements on ISPs and YouTube was pleased that the issues remain confined to the past rather than the present. "This balanced decision provides a thoughtful way to distinguish legitimate service providers from those that build their businesses on infringement," said Viacom in a statement.

Digital Music News is "actively soliciting ... litigation assistance" from "potentially sympathetic organizations" since an anonymous comment on its site has dragged it into the multiple ongoing lawsuits against music sharing service Grooveshark. The comment alleged that the service's executives had guilty knowledge about uploading and hosting infringing material, but DMN insists it now has no information of evidentiary value in its database and believes Grooveshark's legal discovery filings are "vindictive."

On April 2 the multi-industry Center for Copyright Information announced the leadership put in place to roll out the Copyright Alert System first announced in July 2011. Charged with alerting infringing Internet users that their accounts are being misused, CCI's executive board is loaded with ISP and content industry major players, including AT&T, Comcast, MPAA, RIAA, Verizon, and Viacom. Its advisory board represents leading consumer-oriented organizations such as the Center for Democracy and Technology, Future of Privacy Forum,, and Public Knowledge. The American Arbitration Association has been retained to provide independent review if consumers dispute alerts. The executive director position will be filled by Jill Lesser, whose background spans high-tech, copyright and consumer activism. "I am excited to lead CCI as it begins this constructive effort to reduce and deter online copyright infringement in a way that is centered on education and deterrence, not punishment," said Lesser. Gigi Sohn, CCI advisory board member and Public Knowledge president and co-founder, blogged that she will be a whistle-blower or even resign if she believes that this opportunity becomes heavy-handed, anticonsumer or anti-Internet. She hopes to discourage tougher copyright enforcement legislation by helping the alert system function well. "I believe that if implemented properly, the copyright alert system could have a positive impact on illegal file-sharing while at the same time protecting Internet users' rights," Sohn said.

U.S. Intellectual Property Enforcement Coordinator Victoria Espinel announced her second annual report on March 30 via the White House blog. For those who had long hoped that U.S. law enforcement would make antipiracy a serious priority, the document represents a coming-of-age moment reporting heartening progress and extensive efforts. The Copyright Alert System is mentioned as just one of several efforts to facilitate voluntary private sector actions. The defeat of rogue website legislation falls into its larger context of encouraging legislative reform, with wins as well as losses and a determination to continue to press for new laws that improve IP enforcement. There are many other areas of focus and summaries of the work contributed by many federal agencies, including outreach to international law enforcement. To pluck two nuggets from the many substantive accomplishments listed, it seems better coordination is playing a demonstrably positive role. First, describing a boost in efficiency, Espinel's report said, "The level of enforcement dramatically increased by over a third across the board and this increase in law enforcement operations occurred with only a 5 percent increase in projected spending." Second, based on progress by the National Intellectual Property Rights Coordination Center multi-agency task force, better teamwork and organization are becoming routine. "De-confliction is the process of vetting investigatory activities throughout the law enforcement community to ensure law enforcement resources are not duplicated and wasted. The number of cases de-conflicted increased to 2,877 — a 429 percent increase in comparison to 2010," the report said. Another noteworthy area of effort that is still in progress is a broad study of U.S. IP industries and their economic impact.

Game consoles are maturing as home entertainment centers, with an increasing number of on-demand streaming video services available. The Los Angeles Times recently reported that Microsoft Xbox 360 households now spend a little more than half their average 84 hours of streaming per month consuming movies, television and music. On April 3 Amazon Instant Video became the latest addition to Sony PlayStation 3's array of video services. Cnet News recently rounded up the consternation consoles' new digital rights management is causing their traditional market of dedicated gamers who purchased titles on optical disc with the expectation these could be resold as used. Internet ID codes now enable gaming services to cripple or enable console titles' special features based on their publishers' business models and terms of use.

On March 30 China's State Internet Information Office announced that 16 websites had been shut down and six people were arrested due to spreading politically objectionable rumors. An unexpected change in communist party leadership led to rumors of "military vehicles entering Beijing and something wrong going on in Beijing."

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

Click on the "ArtsWatch" tag for links to other GRAMMY News stories in this series.

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