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Viacom's anti-Google copyright case rises from the dead

Appeals court: DCMA squabble can go forward

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The class-action lawsuit filed by Viacom, the English Premier League, and others against Google has risen from the dead, thanks to a reversal of lower court decisions by the 2nd US Circuit Court of Appeals.

"It's hard to characterize this as anything other than a loss for Google, and potentially a significant one," Eric Goldman of the High Tech Law Institute at Santa Clara University told Reuters. "It has given new life to a case that Google thought was dead."

In March 2007, Viacom filed its billion-dollar suit aginst YouTube, which had been acquired by Google in the fall of 2006 for $1.65bn in a stock-for-stock swap. At the time, Viacom accused the Mountain View ad merchant of copyright infringement, claiming that YouTube's online vdeo collection included 160,000 infringing works that had been viewed 1.5 billion times.

Shortly after Viacom filed their complaint, the Premier League footballers got in on the action, claiming that YouTube violated their copyrights by showing clips of matches. Others hopped aboard, as well, including music publisher Bourne and CO., the US National Music Publishers Association (which settled last August), the Finnish Football League Association, and others. All the complaints were combined into one class-action mega-suit.

The case went through the usual convolutions all too common in such complex litigation, including one bizarre turn when a judge ordered YouTube to provide Viacom with 12 terabytes of user logs, including video viewers' account names and IP addresses. Sanity, however, prevailed in that matter when the two companies agreed that the data could be anonymized before Viacom got its hands on it.

At one point, Google accused Viacom of surreptitiously uploading infringing videos onto YouTube in order to bolster its case – even alleging that they had been "roughed up" to make them "look stolen or leaked".

The case was seen as a major test of the US Digital Millenium Copyright Act, which includes a "safe harbor" provision that protects a company from copyright-infringement liability if it is merely the medium used by malefactors to post infringing content, as long as the company takes the infringing materials down when requested to do so by the copyright holders – a provision that Google asserted when it asked the court to dismiss the suit.

The class-action complaint came to a head in June 2010 when a federal judge agreed with Google's DCMA defense and dismissed the suit. "The present case shows that the DMCA notification regime works efficiently," US District Court Judge Louis Stanton wrote in his 30-page opinion. "[W]hen Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them."

That dismissal was laid down in June 2010 – but as court-watchers know, the end of such a case is rarely, well, the end of such a case. In October of last year, Viacom filled an appeal, calling the dismissal "fundamentally flawed", and the case went back to court.

This Thursday, the 2nd US Circuit Court of Appeals agreed, and like a litigious zombie from George Romero's Night of the Living Dead, the lawsuit walks among us yet again.

The decision was written by the 2nd Circuit's Judge Jose Cabranes, who was of the opinion that "a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."

Although appeals panels normally consist of three judges, this case was decided by only two – the third died while the litigation was pending. But the case lives on. ®

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