(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;In a 24-page decision issued Thursday, the Hon. Louis Stanton of the Southern District of New York held that the plaintiffs had not proven that YouTube knew of specific infringements and yet failed to take them down. Over and over again, Judge Stanton explains, it was the plaintiffs' burden under the DMCA to alert YouTube as to infringing content, and not YouTube's obligation to find it for them. He concludes:
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Thus, during the period relevant to this litigation, the record establishes that YouTube influenced its users by exercising its right not to monitor its service for infringements, by enforcing basic rules regarding content (such as limitations on violent, sexual or hate material) , by facilitating access to all user-stored material regardless (and without actual or construct knowledge) of it was infringing, and by monitoring its site for some infringing material and assisting some content owners in their efforts to do the same. There is no evidence that YouTube induced its users to submit infringing video, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to participated in their infringing activity.The case is dismissed, with costs awarded to YouTube. Given the billions potentially at stake, you know what's next:
Viacom isn’t taking this latest defeat sitting down. “This ruling ignores the opinions of the higher courts and completely disregards the rights of creative artists,” company spokesman Jeremy Zweig said in an email to TIME. “A jury should weigh the facts of this case and the overwhelming evidence that YouTube willfully infringed on our rights.” The company said that it would once again appeal the ruling.
“At this point, I don’t have any idea why Viacom continues to press its point,” [Prof. Eric] Goldman said. “I guess copyright owners are persistent. By 2010, Google had already spent $100 million defending this case. Lord knows how many more millions of dollars the parties have spent since then.”