Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen. And really, the Court of Appeals' opinion (DMLP threat entry on the case here; .pdf of the opinion here) in Viacom v. YouTube is pretty decent on most of what I care about. But my focus today is on one particular spot in the opinion that turns out to be a bit squishy: the meaning of the statutory phrase "right and ability to control [infringing] activity." The parties presented two clear – albeit diametrically opposed – interpretations of the phrase, and the Second Circuit settled on... neither one. It's an unfortunate bit of fogginess in what could have been a seriously clarifying opinon. (After all, when the Second Circuit speaks on copyright, other courts tend to notice.)

A quick DMCA refresher, if you're rusty: The statute sets up a system to shield online service providers from copyright liability based on their users' activity. So in the YouTube case, the fight is over whether YouTube (and now its corporate daddy Google) can be held liable for infringing videos posted by users. If YouTube qualifies for the DMCA "safe harbor," it's in the clear. If not, there's pain on the horizon.

Sparing you full explication of all of the safe-harbor subtleties, it's enough to know that there are a few bad things that can disqualify a site like YouTube from protection – mines floating in the safe harbor, if you will. (And I hope you will.) The one I'm worried about today is at 17 U.S.C. § 512(c)(1)(B), and it's worth laying out the language. To keep its safe-harbor protection, a site like YouTube must:

not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.

You can see the two fights that can arise: (1) Is YouTube making money "directly attributable" to users' copyright infringement? (2) Does YouTube have "the right and ability to control" those users' behavior? The Second Circuit didn't deal with the "directly attributable" question (which is interesting in its own right), but it did have something to say about the second question: What does it mean for a website like YouTube to have "the right and ability to control"?

YouTube's lawyers had an answer: To have the ability to control an infringing video, we need to know exactly where it is. (So, something like a URL for the infringing video.) The idea here is that if YouTube doesn't know a particular video is sitting on its server, it can't be expected to take it down. And Viacom, of course, offered the reverse: YouTube can delete any video whenever it wants, so it has the "right and ability to control," period. But the Second Circuit didn't take to either suggestion.

At first glance, YouTube's argument seems reasonable enough – you have to know about something to "control" it. But another one of the mines-in-the-safe-harbor, § 512(c)(1)(A), already deals with this kind of "actual knowledge." (There was a big fight about this point, too, but the Second Circuit mostly sided with Google on the interpretation of (c)(1)(A).) Google's suggested interpretation of (c)(1)(B) runs the risk of making it redundant with (c)(1)(A), and courts don't like to do that. So, Google's suggestion is out.

Viacom's argument that the mere ability to delete is control, on the other hand, would swallow up the safe harbor completely, unless a service provider was constantly vigilant against any possibly-infringing material. And the whole point of the safe harbor is to take that load off of the Internet companies by giving them cover if they comply with some less-intrusive requirements. Thus, Viacom's interpretation was dead on arrival.

So that left the Second Circuit in a bit of a bind. If (c)(1)(B) doesn't require actual knowledge of the infringing activity, but does require something more than the bare technical ability to take down user-posted content, then what is that "something more"? Here, the Court of Appeals fudges, and that's what makes me a bit nervous. It's not that what they say is bad; it's just vague enough that we can't really know how lower courts will handle it.

The Second Circuit points to two other cases to help illuminate the "something more" problem, and we can use those cases to at least get a sense of what the Court of Appeals is going for. The first is a 2002 California district court case, http://scholar.google.com/scholar_ca