WASHINGTON D.C. — In Viacom Int'l, Inc. v. YouTube, Inc., a U.S. district judge just held that one of the Digital Millennium Copyright Act's (DMCA's) so-called "safe-harbors" would protect the original founders of YouTube from monetary civil liability even if they had intended to profit by intentionally inducing mass copyright piracy. In "Grokster Redux: Why the District-Court Ruling in Viacom v. YouTube Will Be Reversed," Thomas Sydnor, Senior Fellow & Director of the Center for the Study of Digital Property, explains why the Viacom opinion is indefensible.

Sydnor discusses the Opinion's two most glaring errors. First it held that the DMCA's civil "safe-harbors" protect even intentional, massive and potentially criminal wrongdoing. Second, it often reversed the usual meaning of familiar terms of art adopted in the DMCA.

Viacom held that if hosting-service operators respond to copyright take-down notices, then the DMCA protects them from monetary civil liability—even if they are also intentionally inducing massive piracy—and thus potentially committing many federal crimes, including criminal racketeering. Sydnor warns, "the Supreme Court has repeatedly held that Congress does not 'hide elephants in mouseholes' by altering 'the fundamental details of a regulatory scheme in vague terms or ancillary provisions ….'" Consequently, Viacom could not lawfully imagine civil "safe harbors" for potential criminals to lurk implicitly in the DMCA's legislative history.

Viacom also repeatedly reversed the usual meaning of terms used in the DMCA. For example, § 512(c)(1)(B) denies safe-harbor protections to any hosting service deriving a direct financial benefit from infringing uses that it has "the right and ability to control." Judges created the quoted phrase to convey the lack of any knowledge-of-infringement requirement. But Viacom held that a hosting service has a "right and ability to control" an infringing use only if it has "knowledge of it, which must be item-specific." Sydnor warns, "The Supreme Court has repeatedly held that Congress uses a judge-developed concept in a statute 'to adopt the interpretation placed on that concept by the courts'—not its polar opposite."

Sydnor thus concludes that reversing the Viacom Opinion "will promote the development of lawful Internet commerce" by ensuring that as new online-markets for works arise, federal law will reward those service providers who respect copyrights and the criminal law.

The paper may be viewed here. Thomas Sydnor is available for comment. Please contact Mike Wendy at mwendy@pff.org for more information.

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