It was, according to some experts, a major victory for copyright owners in their battle against online infringement. Other experts, however, have a very different view of the 2nd Circuit’s decision in Viacom International, Inc. v. YouTube, Inc. They see the April 5 ruling as largely a win for YouTube, Facebook, Twitter and the many other online businesses that allow users to post content online.
Both sides may turn out to be right. Viacom confirmed that an online business faces no liability when its users post infringing material so long as the business satisfies the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). More significantly, the decision held that an online company does not lose this safe harbor protection just because it knows, in general, that many of its users are posting infringing items.
This legal battle began in 2007, when Viacom and a number of other copyright owners sued YouTube for infringement. They sought to hold YouTube liable for tens of thousands of allegedly infringing videos that users had posted on YouTube’s website.
Another central question will be, “What is control?” The DMCA safe harbor protects an OSP only insofar as the business does not have the “the right and ability to control” users’ infringing activities (and the business does not receive a direct financial benefit from such infringements).