Entertainment Law Shareholder David A. Gurwin Weighs In On Viacom-YouTube Copyright Battle in International Business Times

Despite a district court ruling in favor of YouTube, Viacom is pursuing its $1 billion civil lawsuit against the video-sharing website which Viacom claims allowed users to post partial or full episodes of copyrighted televisions shows and refused to remove the offending videos once a complaint was lodged.

The central question of Viacom's appeal is "did [YouTube] know about the postings, and did it do anything to stop the postings," Buchanan Ingersoll & Rooney Entertainment & Media Law Chair David A. Gurwin told the International Business Times in an article published November 12, 2011.

Viacom filed its initial suit in 2007, but the issues at heart stem from a 1996 ruling in Zeran V. American Online Inc., according to Gurwin. In that precedent-setting case, the court interpreted the Communications Decency Act of 1996 as precluding online service providers from defamation liability, but made no decision regarding copyrighted material. The enactment of the Digital Millennium Copyright Act created similar immunity for online service providers against copyright infringement claims. The applicability of DMCA’s immunity to the Viacom/YouTube situation is at the core of this case.

"Some see YouTube as a way to create an audience base," Gurwin said, explaining why few media companies have pursued litigation against the site. "If a company says it isn't having major negative effect on profits, a lawsuit won't be brought."

Even an appeal victory for Viacom won't remove all videos containing its content from YouTube, Gurwin noted. Fair use provisions and other exceptions to copyright law allow portions of TV shows to be used, and parodies are generally protected.

The outcome of the case will determine if YouTube needs to handle its content more deliberately, Gurwin cautioned. A disclaimer on the site prohibits posting copyrighted material without permission, but with users uploading almost 24 hours of new video each minute it "would be impractical for YouTube to take down all videos immediately that violate copyright laws."

If YouTube's victory is affirmed, immediate changes from either party are unlikely, Gurwin concluded.