In June, a U.S. district court in New York dismissed Viacom's $1 billion copyright infringement action against Google's YouTube.
The court determined that Google did not have a duty to monitor the activity on YouTube to determine on its own which videos were being shared legally and which were not-precisely because of the safe-harbor provisions in the Digital Millennium Copyright Act(DMCA). The DMCA requires YouTube to remove videos containing copyrighted material at the request of the copyright holder, and YouTube had done that, the court said.
Last week, Viacom appealed the dismissal. According to The Wall Street Journal, Viacom argues the video-sharing site should not be protected by the DMCA safe harbor because it knew some of the content being uploaded was unauthorized and still did nothing to remove it.
Some observers say the point is moot now given that YouTube voluntarily began using audio- and video-recognition software to automatically identify unauthorized clips, which the copyright holders can then take down or place ads in. Viacom's attorney, former U.S. Solicitor General Theodore Olson says that argument doesn't fly.
He told the WSJ:
It's as if to say, well we've stopped robbing banks, so let's just forget the whole thing and move on. It is exceedingly important in this era of intellectual property and new creative endeavors that we continue to respect what people create.
As Keli Johnson, an attorney for Texas-based intellectual property law firm Scott and Scott, said in an e-mail alert:
If Viacom successfully appeals, the web sites allowing user-generated content may have to become more selective about the information they allow to be posted.