The Second Circuit has finally released its long-awaited decision in the appeal of the Viacom v. Youtube lawsuit, about which I’ve blogged a great deal [starting here, here, here, and here] over the past couple of years. Viacom “won” — in that they got the reversal of the district court’s comprehensive judgment in YouTube’s favor — but notwithstanding the considerable hand-wringing already underway about how terrible a result this is, I’m here to tell you: It ain’t so bad. In fact, I think it’s a pretty sensible opinion that clarifies the law surrounding service provider immunity in some very helpful ways and, most importantly, does no significant damage at all to the underlying immunity principles that have been so profoundly important for the development of the Net over the past decade.
Here are some of the key points. [my emphasis throughout] [My apologies if you’re unfamiliar with the basic layout of the case — see the above links for the basic background]
1. “[A] finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief.”
That’s good — Viacom and allies had argued that the 512 immunities don’t cover any claims for contributory infringement, vicarious infringement, or inducement of infringement. It was an odd theory, and the court shoots it down, correctly, in no uncertain terms.
2. “[T]he ‘right and ability to control’ infringing activity under § 512(c)(1)(B) requires something more than the ability to remove or block access to materials posted on a service provider’s website.”
That’s good, too. The statute says a service provider is not immune from claims if it has the “right and ability to control” the infringing conduct (and derives a “financial benefit” from the infringements). Viacom advanced a plausible argument that, because YouTube (and […]