2nd Circuit Finds the Beef – Reverses Summary Judgment Grant in YouTube

On April 5, the Second Circuit issued its highly anticipated opinion in Viacom v. YouTube, reversing the District Court’s grant of summary judgment and remanding for further proceedings.  Significantly, the opinion marks the first time that a court has drawn a meaningful, substantive distinction between actual and “red-flag” knowledge under the DMCA.  This sets it apart from earlier DMCA opinions, including that of the Ninth Circuit in UMG Recordings, Inc.  v. Shelter Capital (involving the Veoh videosharing service) and, notably, the lower court opinion in Viacom.  Practitioners and ISPs now have some judicial guidance as to how to construe their rights and responsibilities under the DMCA.

Ominously for YouTube, the Second Circuit held that a reasonable jury could find that, under DMCA Section 512(c), YouTube had actual knowledge or awareness of specific infringing activity on its website.  Moreover, the Second Circuit ruled that the District Court had incorrectly construed the DMCA’s control and benefit provisions in holding that the “right and ability to control” infringing activity required that the ISP have knowledge of specific, identifiable instances of infringement.  Finally, the court affirmed the District Court’s holding that three of YouTube’s software functions fell within the safe harbor for infringement occurring “by reason of user storage,” and remanded for further fact-finding with respect to a fourth software function.  Continue reading

Appealing YouTube: The Experts Debate!

I have been an active member of the Copyright Society of the USA for years, and am currently a member of its Executive Committee. It’s a terrific group for those interested in copyright issues, and maintains chapters throughout the country. I thought readers of this blog might like to know about this upcoming chapter event in Washington, D.C.:

The Washington D.C. Chapter of the Copyright Society of the U.S.A. is holding a membership building event on Wednesday, July 27th, 2011 from 4 p.m. to 6 p.m.

Arent Fox LLP, 1050 Connecticut Ave., N.W., Washington, D.C. 20036, will host the event.
There will be a networking reception from 4: p.m. to 4:30 p.m, followed by the panel discussion from 4:30 p.m. to 6 p.m.

Lawyers who submitted amici briefs to the Second Circuit in the pending appeal of Viacom/Football Association Premier League v. YouTube will debate issues related to copyright safe-harbors for user generated content sites. The case will be argued soon, so don’t miss this opportunity to learn about the issues from experts.

The speakers will include:
Moderator
Robert Kasunic, Deputy General Counsel, U.S. Copyright Office

Panelists
Jonathan Band of Jonathan Band PLLC
Patrick Coyne of Finnegan, Henderson, Farabow, Garrett & Dunner LLP
Russell Frackman of Mitchell Silberberg & Knupp LLP
Ron Lazebnik of Fordham University School of Law
Mary Rasenberger of Skadden, Arps, Slate, Meagher & Flom LLP.

Any non-member who joins the Copyright Society of the U.S.A. immediately prior to registering for the event may attend for free. Attendance is $40 for non-members and Copyright Society members. Attendance is $25 for Student members of the Copyright Society. Any Copyright Society member who invites a guest who joins the Society immediately prior to registering for the event may attend at half price.

Registration materials and a membership application are at the following link.

http://www.csusa.org/chapters/dc/CSUSA%20DC%20EVENT%20July%202011.pdf

Space is limited. Please register early. The registration deadline is extended to July 25, 2011.

Second Round
Who’s on Second? A look at secondary liability and the DMCA

A couple of weeks ago, I reprised my talk on secondary liability and the DMCA for the State Bar of California’s IP Section. I updated my original talk – initially delivered last fall to the ABA – to reflect the current status of the UMG v. Veoh and Viacom v. YouTube appeals, which in the interim were fully briefed (and, in the case of Veoh, argued). You can review the revised and updated outline here.

The outline also notes a late-breaking development in the YouTube case stemming from the United States Supreme Court’s recent decision in Global-Tech v. SEB, a patent case addressing the doctrine of willful blindness. I have posted a fuller analysis of this development over at The 1709 Blog, which you can read here.