In 2007 Viacom started copyright infringement proceedings against YouTube in a New York Federal Court, after Viacom and associated companies such as paramount pictures discovered that their copyright protected material (movies etc) were being uploaded onto YouTube by YouTube users without their consent. Viacom were claiming approximately (only..) 1 Billion in damages!!
Viacom argued that that Â YouTube had knowing intent that it was inducing or encouraging the uploading of infringing content onto its websiteÂ (ÂGrokster IntentÂ).
In the ÂGrokster caseÂ the Supreme Court provided three factors to be used in determining whether a company (through their business model) should be held liable for inducing or facilitating copyright infringement:
- Whether the defendant communicated to their users that their service could be used for infringement purposes.
- The absence of filtering technology.
- Their advertising-revenue model.
Viacom contended that all three of the above factors were present, they further argued that YouTubeÂs business model was based on advertising revenue and that YouTube were turning a blind eye to the videos uploaded by users that contained infringing content, they further emphasised that YouTube intended that the site was to be used for infringing purposes.
Viacom emphasised intent due to the Safe Harbour provisions, these limit a service providers direct, vicarious and contributor infringement liability for the following four acts:
4. linking to infringing copyright protected content
The Safe Harbour principle applicable in YouTubeÂs case was in relation to storage, in order for YouTube to benefit from the relevant Safe Harbour Provisions, (firstly as a perquisite for the protection) it had to demonstrate that they adopted and implemented a Ânotice and takedownÂ policy and did not interfere with technical measures which are used by copyright owners to identify and protect their work, it further had to satisfy the following:
- That it did not have actual knowledge or awareness of the infringement.
- That it did not receive aÂ financial benefit directly attributable to the infringing activity.
- That upon notification itÂ acted expeditiously to remove any infringing content.
In short and luckily for YouTube, they managed to benefit from the Safe Harbour provisions!
The two companies have know settled (on terms of which are unknown), in a joint statement they commented:
ÂThis settlement reflects the growing collaborative dialogue between our two companies on important opportunities, we look forward to working more closely togetherÂ