This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
The United States Court of Appeals for the Second Circuit held oral argument on Tuesday October 18, 2011 in this highly significant copyright case. Viacom is appealing the decision by the district court dismissing most of its claims against YouTube (as described here). In the appeal, Viacom and a variety of other content owners argued that YouTube knew that vast amounts of material on its site infringed Viacom's copyrights, including its rights in shows such as South Park, The Daily Show and The Colbert Report. The content owners argue that YouTube's entire business, including its $1.6 billion sale to Google, was based upon copyright infringement. YouTube counters that under the so-called safe harbor provisions of the Digital Millennium Copyright Act, it is only required to remove infringing material when it has specific notice that a particular clip is infringing. Reports from the argument suggest that one or more of the three judges on the Court of Appeals panel may believe that there are factual issues that should have precluded a grant of summary judgment in favor of YouTube, but it often is difficult to predict what the court will do from the nature of the questioning. The case remains of great significance with respect to the responsibility of websites for the posting of infringing material by third parties. It is likely to be several months before a decision is issued.
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