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Viacom vs. Google/Youtube: another victory in the copyright trial.

The Google/Youtube legal teams could take a breath for sure after the latest decision of the Federal Judge: a billion dollars process turns in favour Youtube again and it hasn’t to pay. This long-running trial deals with copyright infringement and here’s a juridical analysis of the process till nowadays.


The parties and the trials.

As you are reading this article, you should have an internet connection: so you know for sure what Youtube is and I haven’t to describe it. Maybe it’s not like that for Viacom.

Video & Audio Communications” is an American g6830726846_89a02242d0lobal mass media company with interests primarily in cinema and cable television, owned in majority by National Amusements, Inc. it is the fourth company in the mass-media market and counts thousands of employers around the world.

Today the company has been closed and renamed CBS Corporation.

From 2010 the Google/Youtube are engaged in a trial for copyright infringement: in the specific Youtube is the defendant and Viacom the plaintiff. It has been a “long-running” lawsuit where at the beginning the Judge ruled decisively against Viacom, finding that Youtube was protected from copyright infringement liability for the activities of its users by the safe harbors of Section 512 of the Digital Millennium Copyright Act.  

In 2012 the Second Circuit Court of Appeal (PDF link) revived the entertainment giant’s lawsuit – but simultaneously eviscerated most of Viacom’s legal theories. The court found that YouTube was protected from liability except where “the company actually knew of specific instances of infringement of material at issue in the case, or facts or circumstances indicating such specific infringement. In a bit of a technical point, the court also said it was unclear whether syndicating clips might be the kind of activity contemplated by the safe harbours”.

In the end the most important thing is that  the court suggested that YouTube might be liable If it had exerted “substantial influence” on the infringing activities of users; so the court sent the case back to the district court for a determination on the unresolved issues. 

That determination has been made and on 17 April 2013 YouTube wins.

Viacom tried an original approach:  It claimed that since the DMCA safe harbours offer an “affirmative defense” to an infringement allegation (meaning, procedurally, a defendant would normally invoke them in response to a lawsuit or other threat), and it is normally a defendant’s burden to prove that kind of defense, YouTube had to prove its lack of knowledge.

The court dismissed the Viacom’s legal theory as “extravagant,” “ingenious,” and “anachronistic”: in fact under the DMCA scheme, the copyright owner has the burden of identifying what is infringing, and Viacom had offered no legal basis to shift that burden to YouTube.

Viacom doesn’t give up and tried other 2 argumentation:

First one. Viacom argued that YouTube had instead been wilfully blind to the infringing activity. But Viacom simply couldn’t muster the evidence for this theory either: 

The examples proffered by Viacom give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them. The specific locations of infringements are not supplied: at most, an area of search is identified, YouTube is left to find the infringing 2867376488_656043851cclip.

So that left yet another theory, the second one:YouTube lost safe harbour protection because it had financially benefitted from conduct it had the right and ability to control”.

To prove that, Viacom had to show YouTube had influenced or participated in infringing activity. 

Viacom couldn’t. There is no evidence that that YouTube induced its users to submit infringing videos, provided its 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 court had a bit more clean-up to do regarding a narrow question of whether “syndicating” clips fell within the protections of the DMCA safe harbours. The court concluded that it did.

Will Viacom gives up?


1 Billion dollars trial goes in to the black hole and Viacom lost. The video network of google is not responsible for the uploading of its users and all goes right for it.

There are some rumours which identify that all the process was initiated for an upload of an entire season of the famous cartoon “South Park”.

For a normal user it is not difficult to find a lot of series and entire episodes of famous TV Shows and programs.

But, in the end, is it correct to upload them?

I am not sure about that, I can only say that if I would have been the owner of website and millions of people can see Pay TV free in my page, I would be worried.


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About Amedeo Marchelli

Law Student. Love foreign languages. Searching the cure of mankind.

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