Viacom gets red flag

On the 23rd June the United States District Court gave summary judgement that YouTube were entitled to DCMA "safe harbour" protection in respect of publishing content owned by ViaCom as long as they followed DCMA guidelines.

This may be perceived as a victory for YouTube but the judgment made absolutely clear that sites like YouTube must remove illegal content "expeditiously" or would lose the safe harbour status. YouTube escaped liability as when asked to remove content they had done so quickly.

A few excerpts from the Judgment of Louis L. Stanton

"However, if the service provider becomes aware of a "red flag" from which infringing activity is apparent, it will lose the limitation of liability if it takes no action"

Interestingly goes on, quoting from Senate Report 45 "Section 512 does not require use of the takedown and notice procedure". Therefore a "red flag" can exist when a copyright owner has not used the takedown procedure of the service provider."

The report goes on ".......a service provider would have no obligation to seek out copyright infringement, but it would not qualify for the safe harbour if it had turned a blind eye to red flags of obvious infringement. "

So in this case and on these facts YouTube had done enough. No doubt ViaCom will appeal but in any event this has very much narrowed down the room for manoeuvre enjoyed in the past by the publishers of illegal content. Maybe ViaCom have lost this battle but are a step closer to winning the war.

Of further interest was that Lime Group, Fung and Grokster were distinguished out as they were file sharing P2P networks which are "not covered by the safe harbour provisions of DCMA 512(c).