In the city of light, Google (GOOG) glimpsed a light at the end of the tunnel in its hard-fought battle over allegations of copyright infringement at YouTube. YouTube, a subsidiary of the search engine giant, has faced numerous infringement allegations on many fronts in the U.S. and abroad. However, in May a French court dismissed a suit brought by TF1 that claimed infringement of its French broadcasting and distribution rights in popular shows like Grey’s Anatomy and Bob L’eponge (better known as Spongebob Squarepants in the States). This dismissal by the Tribunal de Grande Instance was a turning point for YouTube, which has faced similar copyright litigation in Germany, Italy and the U.S. Although TF1, the largest TV company in France, may appeal the decision, YouTube executives were quick to declare the court’s ruling a victory. The video-sharing site had reason to rejoice over the court’s opinion that ordered TF1 to pay Google €80,000 for its legal expenses in addition to dismissing the broadcaster’s infringement claim.
The French ruling is in contrast to the less favorable treatment that YouTube has received in many European courts. In Germany a court ordered the web site to remove certain protected content after it had received infringement notifications, thereby refusing to accept YouTube’s argument that it was simply a “hands-off” content storage site. The German court also encouraged YouTube to improve its content-filtering technology to reduce distribution of infringing content. In Italy the site has repeatedly faced negative judicial criticism. In 2009 the video-provider lost a major court battle and was required to remove all clips and stills of Il Grande Fratello (the Italian version of “Big Brother”) from its site. In another suit Google executives received a suspended sentence of six months for an invasion of privacy claim arising from a YouTube video showing the bullying of an Italian teenager. Although this suit was not directly related to copyright issues, the court’s assertion that Google was responsible for whatever content appeared on its site could have far-reaching implications for infringement claims. In addition to challenges abroad, YouTube faces a renewed domestic dispute. A suit brought in U.S. federal court by Viacom in 2007 was recently given new life when an appeals court ordered that a jury hear the case.
The recent decision in the French litigation was important on many fronts, including bolstering YouTube’s defenses in the face of the multiple copyright claims it faces around the globe. Central issues in the French litigation mirrored the key questions in infringement suits that YouTube faces around the globe, including: whether YouTube had actual knowledge of infringement and whether YouTube controls the content on its site or is merely a hosting platform for its millions of users. As such, the litigation has been closely watched. The court’s opinion marked a big loss for TF1 that had requested that YouTube be ordered to monitor all content before it was uploaded. The broadcaster has not made a decision as to whether it will appeal the trial court’s decision.
In the United States a recent decision in the Second Circuit reopened a similar infringement case brought against YouTube by Viacom (VIA). Originally dismissed by the trial court, Viacom’s case centered on key provisions of the Digital Millennium Copyright Act (DMCA). Specifically, Viacom argued that YouTube was not afforded protection from its infringement claims by the so-called “safe harbor” provisions of the DMCA. The act protects internet service providers from certain infringement claims that arise when a user stores content on the service provider’s system or network. However, this safe harbor is not absolute. A service provider is not immune from copyright claims if it can be shown that the provider had “knowledge or awareness of specific infringing activity.” The Second Circuit reversed the trial court’s opinion because it found that a reasonable jury could find that YouTube had such knowledge. Although this was not a direct ruling against the company, it will require it to defend its case in the lower court one more time.
In contrast, the French court’s endorsement of Google’s ContentID program as a sufficient method of content monitoring was a big win for the service provider. According to YouTube’s web site, rights holders participate in the ContentID program by providing sample content to YouTube, which then uses digital fingerprinting technology to monitor the posting of any infringing material. If the systems catches any infringing material the rights holder decides whether to remove, track or monetize the content. The French court’s finding is in contrast to arguments put forward by the class plaintiffs in the U.S. Viacom litigation. Counsel for the plaintiffs in that suit referred to the infringement detection system as “woefully inadequate” and “coercive.” General acceptance that ContentID is an appropriate means of policing infringement could influence the ongoing litigation in New York, so both sides of that fight are likely to monitor any appeals that arise from the recent French decision.
The opportunity for TF1 to appeal the latest decision in this copyright battle means that the light at the end of this tunnel may be fleeting. Further, YouTube’s constant expansion into new markets – Google launched a new YouTube site in Indonesia earlier this month – means that these infringement wars will continue to push international copyright boundaries for many years to come. Given that 72 hours of content is uploaded to YouTube every minute, service providers, copyright holders and courts alike will have to stay tuned as the law evolves to keep pace with rapid content-sharing technologies.
* Rachel Waters is a recent JD/MBA graduate of the Wake Forest University School of Law. She also holds a Bachelor of Arts in Political Science and International Studies from Wake Forest. After sitting for the California bar exam this July, Rachel is excited to begin a yearlong clerkship with the Honorable Terrence W. Boyle (E.D.N.C.) in September. Upon completion of her clerkship, Rachel intends to practice law in San Francisco.