YouTube Lacked Sufficient Knowledge of Infringement of Viacom Content, Motion for Summary Judgment Says

Viacom must prove YouTube knew of the infringing clips and “failed to expeditiously remove such clips,” the motion said. “The evidence must draw a direct connection between what YouTube knew and the specific clip at issue that was not expeditiously removed after YouTube gained such knowledge.” The evidence would have to meet the DMCA’s high bar, the motion continued: “YouTube would have been able to discern immediately that the clip was an obvious infringement of Viacom’s copyright."

An oft-cited memo about infringing YouTube clips, written by YouTube co-founder Jawed Karim, does not prove that YouTube employees had knowledge about the clips, YouTube’s motion said. Karim was no longer an employee of YouTube when he wrote the memo, meaning that “whatever clips Mr. Karim may have seen in preparing his memo were not clips that YouTube saw, and whatever belief Mr. Karim may have formed ... is not knowledge of infringement that can be imputed to YouTube,” YouTube’s motion said. Additionally, the memo provides no information about specific infringing clips, the motion continued. “The most that could be concluded from the memo is that Mr. Karim (not YouTube) saw unspecified clips (that may or may not be clips-in-suit) that Mr. Karim believed to be infringing (but may not have been) and that YouTube may have actually taken down upon learning about them.” In its opposition, Viacom said YouTube’s objections to the memo “are beside the point, as they mainly go to Karim’s subjective awareness of specific infringing clips rather than to YouTube’s willful blindness, and they are all premised on the misapprehensions that Viacom has the burden of proof.”

Through its marketing practices, Viacom made it difficult for YouTube to determine which videos were authorized uploads, YouTube’s motion said. Viacom “embraced YouTube to advance its business,” including uploading videos containing its content through official company channels, “but much of it was covert, using dozens of obscure YouTube accounts that bore no obvious link to Viacom.” “Many” of the clips Viacom claims infringe on its copyrights were uploaded by those obscure Viacom accounts, making it difficult for YouTube to tell which videos were authorized to be uploaded and which were not, the motion said. Additionally, Viacom hired a content managing firm and gave it specific instructions to allow certain videos containing copyrighted content to remain on YouTube, the motion said. “Even after suing YouTube, Viacom continued its policy of deliberately allowing clips to remain on the service."

"YouTube deliberately shielded itself from learning which particular postings violated Viacom’s copyrights,” Viacom said in its opposition. Under the willful-blindness doctrine articulated by the 2nd Circuit, YouTube’s “deliberate failure to learn of [the infringing clips] is deemed to be knowledge of those specific transactions,” the opposition said. “YouTube’s contrary theory -- that willful blindness requires proof that YouTube actually knew about the specifics, rather than that it deliberately blinded itself to those specifics -- would turn the willful blindness doctrine on its head."

YouTube’s co-founders reviewed and deliberately left up infringing content, Viacom lawyers wrote. “Although the founders removed some of those infringing clips to give the appearance of copyright compliance, they deliberately left many other infringing clips of which they were aware on the site, including ‘comedy clips,’ a Viacom specialty ... because they knew those clips were essential for aggressively growing YouTube.” Viacom owns Comedy Central.

YouTube did not take all technical steps possible to protect Viacom copyrights, the opposition said. When it was working with outside firm Audible Magic to identify infringing content, YouTube only allowed content partners -- which did not include Viacom -- to use the technology, Viacom said. Additionally, Viacom and the Motion Picture Association of America offered YouTube “their technology experts [to] assist YouTube in using technical means to identify and block unauthorized Viacom content,” but YouTube declined, the opposition said.

YouTube misrepresented Viacom’s marketing practices in its motion for summary judgment, Viacom’s opposition said. YouTube cites “50 obscure accounts, the names of which bore no obvious link to Viacom, but fails to identify a single account used by Viacom or its agents of which YouTube was actually unaware,” the opposition said. Additionally, YouTube’s motion presents evidence “about only one account involving one unauthorized video ... to give the false impression that the way in which the account was set up was a regular occurrence,” but “this account was used only one time, which YouTube knew about at the time,” the opposition said. YouTube also claimed that Viacom’s select enforcement creates an implied license, Viacom continued. “Regardless of Viacom’s enforcement policies, clips that were infringing at upload remained infringing unless and until Viacom actually granted YouTube a license to display those clips -- something that never occurred.”