In 2007, Viacom filed a lawsuit against YouTube, seeking a billion dollars in damages for the infringement of Viacom copyrghts in videos uploaded to YouTube by third-party users. On Wednesday, a federal district judge granted YouTube summary judgment, saying the claims were barred by the DMCA (Digital Millennium Copyright Act).
Two aspects of this are interesting. First, how they decided to ask for a billion dollars. I have no idea, but I imagine it would be more fun if it happened like this:
Attorney: “How much do you think these clips of SpongeBob Squarepants are worth?”
Exec: “They’re worth… like… a billion dollars, man.”
Attorney: “Really? Huh, well. I was going to say twenty bucks, but okay.”
Second, it’s a good education in how the DMCA prevents some theories of secondary liability. Secondary liability is an umbrella term that can be further broken down into “vicarious liability,” which occurs when you profit from infringing activity without actually being involved in the activity, and “contributory liability,” which occurs when you know about the infringing activity and somehow contribute to its completion.
Secondary liability is important when you’re talking about internet services because primary copyright liability–that is, plain old copyright infringement–against the provider of an internet service is prevented by the DMCA, which says providers of internet services are not liable for content uploaded by third parties if they designate an agent with the Library of Congress and follow the steps required when notified of an infringement.
The biggest secondary liability case of the Internet era was the original Napster case. The RIAA argued, and was able to demonstrate through Napster’s internal memos, that Napster executives were basically aware that the primary use of the original service was to distribute copyrighted music.
I didn’t see those memos, but I imagine they looked something like this:
Attorney: “How much do you think the entire Metallica catalog is worth?”
Exec: “It’s worth… like… zero dollars, man.”
Attorney: “Really? Huh, well. I was going to say twenty bucks, but okay.”
Using the same theories, Viacom sued YouTube. The problem with that theory, of course, is that YouTube isn’t Napster. YouTube actually has a substantial amount of non-infringing content. In finding against Viacom’s billion-dollar claim, the judge noted that permitting secondary liability based on nothing more than the general knowledge that infringing activity sometimes takes place would have the effect of letting the scope of secondary liability swallow the DMCA’s immunity from primary liability.