Viacom, on behalf of its MTV, Comedy Central, Black Entertainment Television, Paramount Pictures and Nickelodeon units, is seeking to overturn a June ruling that, if it survives, is a boon for internet freedom — and a decision that would make it more difficult for rights holders to protect their works.

The media concern told the New York-based 2nd U.S. Circuit Court of Appeals on Friday that, if the lower decision stands, “it would radically transform the functioning of the copyright system and severely impair, if not completely destroy, (.pdf) the value of many copyrighted creations.”

The June 23 decision at issue by U.S. District Judge Louis L. Stanton of New York said internet companies, even if they know they are hosting infringing material, are immune from copyright liability if they promptly remove works at a rights holder’s request — under what is known as a takedown notice.

Stanton disagreed with Viacom’s claims that YouTube had lost the so-called “safe harbor” protection of the DMCA. Viacom maintains Google does not qualify, because internal records showed Google was well aware its video-hosting site was riddled with infringing material posted by its users.

Stanton ruled that YouTube’s “mere knowledge” of infringing activity “is not enough.”

“To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA,” the judge wrote.

Stanton ruled that YouTube, which Google purchased in 2006 for $1.8 billion, had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.”

The DMCA, which was heavily lobbied into existence by the Hollywood studios, has been a boon for internet freedom. But it has been a bust in other areas.

Among its provisions, the DMCA prohibits the circumvention of encryption technology that protects copyrighted works. The law, adopted in 1998, makes it unlawful to market DVD copying devices, for example, and also paved the way for a Southern California man to be charged on allegations of modding Microsoft’s Xboxes.

Still, the DMCA’s “safe harbor” privilege comes with another price. The law demands intermediaries such as YouTube to take down content in response to a notice from rights holders, without evaluating the claim for reasonableness or accuracy, or considering the fair use rights of users. And on Thursday, Google said it would expedite the process of content removal.

Photo: Mark Roquet/Flickr

See Also:

• 10 Years Later, Misunderstood DMCA is the Law That Saved the Web …
• DMCA Muscle Kills DVD Copying, for Real
• Apple v. EFF: The iPhone Jailbreaking Showdown
• Prosecutors Seek to Block Xbox Hacking Pioneer From Trial
• Google Wins Viacom Copyright Lawsuit
• Accusations Fly in Viacom, YouTube Copyright Fight
• Judge Orders YouTube to Give All User Histories to Viacom

Authors: David Kravets

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