Hey, 2d Circuit!

As some of you may know, the 2d Circuit heard argument yesterday in the Viacom v. YouTube case, a very important copyright case about which I’ve blogged a number of times before (and in which I co-authored an amicus brief submitted on behalf of some 45 law professors). Last week, I circulated an Op-Ed I wrote about the case to a few of the “national” papers (NY Times and WSJ); I thought (and still think) I was making a point, and a connection, that others have not made in all of the debate surrounding Internet copyright issues (and which are difficult to make in the context of an amicus brief), and I genuinely hope that the judges will indeed stop and consider the deep implications their decision in this case will have for the Internet, and for robust speech on the Internet, for years to come. I was hoping to catch the eye of one of the 2d Circuit judges, perhaps as he/she was sitting on the train heading in to the office, and I figured that the Times or the Journal was a good place to do that. But alas, the editors had other ideas … So I’ve printed it below; maybe, if some of the 2d Circuit judges or clerks are VC readers, they’ll pass it along …


On October 18th, at the federal courthouse in downtown Manhattan, the US Court of Appeals will hear arguments in Viacom et al. v. YouTube, a case raising important questions about the application of U.S. copyright law on the Internet. Through a fascinating set of links and connections, the citizens of Bahrain, and Burma, and Syria, and . . . all have a very large stake in the outcome.

The case involves interpretation of a provision in the Digital Millennium Copyright Act (DMCA), enacted by Congress in 1998 to update the Copyright Act for the Information Age. The DMCA gave “providers of online services” an immunity from copyright infringement claims arising out of the activities of their users and subscribers. Website operators, for instance, would not be liable for their users’ infringements unless they themselves had “actual knowledge” of the infringing activity, or were at least “aware of facts and circumstances from which infringing activity is apparent.” At the same time, the statute imposed a condition: A website operator that receives a “take-down notice” from a copyright holder, identifying specific infringing content available at the site, must “respond expeditiously to remove, or disable access to” the infringing material, or it forfeits the immunity and becomes exposed to liability for the underlying infringment(s).

The scheme has been a resounding – perhaps even an astonishing – success. The “notice-and-takedown” process has proved to be an efficient and effective remedy for copyright holders seeking to eliminate, or at least mitigate, the damage from infringing conduct on the massive scale made possible by Internet technologies; hundreds of thousands, or perhaps even millions, of infringing works have been removed from the Internet through the notice-and-takedown process, without the need for costly and time-consuming litigation. At the same time, website operators have a simple and straightforward means of avoiding exposure to potentially astronomical liability under the Copyright Act’s (rather generous) damage provisions (which permit recovery of up to $150,000 for each infringed work).

The result? Extraordinary and unprecedented growth over the past decade in innovative Internet services and applications based entirely on participatory user expression – “social media,” “user-generated content,” or “Web 2.0” services and applications. Thousands of Internet businesses, many of which are now household names around the globe – Facebook, Twitter, YouTube, Blogger, Craigslist, Myspace, Tumblr, Flickr, and many, many others – share one common characteristic: they provide virtually no “content” of their own (copyrightable or otherwise), but instead provide a platform for users to exchange content with one another. Internet users have responded in truly breathtaking numbers: to take one of many examples, YouTube users upload more than 40 hours of video every minute of every day, amounting to more video content each month than the combined output of all three major U.S. television networks for the past 60 years.

It is impossible to imagine this development in the absence of the DMCA immunity, just as it is no coincidence that all of the websites listed in the preceding paragraph are based in the United States, where the immunity has been most firmly embedded in the law. Without an immunity from infringement claims, permitting users to freely exchange content with one another at this scale would be financial suicide; the liability exposure would amount to hundreds of millions of dollars in copyright damages each and every day. No rational investor would provide financing for such an operation, no bank would lend it money, no employee would stake even a small part of his/her future on it, without the reassurance provided by the DMCA immunity.

In short, without the DMCA immunity there would be no Facebook, no YouTube, no Twitter. And without Facebook, and YouTube, and Twitter, Hosni Mubarak is quite probably still the President of Egypt. It’s hard to prove that, of course – but most observers agree that these “social media” sites were part of the indispensable infrastructure allowing demonstrators in the “Arab Spring” revolutions to communicate with one another and to organize against rulers who were very skilled in the suppression of dissent and the disruption of communication among their citizens.

That’s what’s at stake in that courtroom. The entertainment industry plaintiffs in the case challenge the lower court’s decision (allowing YouTube to assert the immunity against all of the plaintiff’s infringement claims), and seek a ruling that would shift some of the burden of identifying and locating infringing material onto the website operators’ shoulders. The legal arguments involved are complex, with much technical hair-splitting on both sides. Along with 45 colleagues from the legal academy, I submitted an amicus brief to the court on YouTube’s side, arguing that the language, structure, and purpose of this statutory provision places that burden squarely on the copyright holders through the notice-and-takedown process. But however the court ultimately rules, its decision will go a long way towards determining the kind of Internet we have going forward, and one hopes that the judges recognize that, and that they keep Tahrir Square in mind as they deliberate about the shape of US copyright law.

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