Tuesday, April 26, 2011
Amir Hassanabadi, University of California Berkeley School of Law & Berkeley Center for Law & Technology, has published Viacom v. Youtube: All Eyes Blind--The Limits of the DMCA in a Web 2.0 World in volume 26 of the Berkeley Technology Law Journal (2011). Here is the abstract.
The decision in Viacom v. YouTube makes clear that the DMCA is slipping into irrelevancy and may not be able to accurately hit the moving target of issues raised in the evolving Internet landscape. Pressed against the dual concerns of looming and massive statutory damages and the DMCA’s inability to predict Web 2.0 technologies, the court took a sledgehammer to the delicate issues at stake, rather than use the scalpel those issues deserved. The court ignored instances of specific knowledge and dismissed evidence of possibly overwhelming amounts of infringement. In choosing DMCA takedown notices over content filtering as the method of choice for “red flag” notification, the court has chosen to enforce a blunt instrument rather than an elegant tool.
This Article makes three arguments. 1) There was a genuine issue of material fact as to whether YouTube was entitled to the § 512(c) safe harbor. Summary judgment was not appropriate as a matter of law, and the case should have gone to a jury. 2) The opinion strongly suggests that the only way for a “red flag” to be triggered is through a DMCA takedown notice. The consequence of this decision, then, is a notice and takedown only regime. 3) Because of the possibility of heavy statutory damages, the DMCA’s inability to foresee the advent of content filtering, and the desire to achieve the social policies inherent in the DMCA, the court had little choice but to read the “red flag” test as narrowly as possible.
Download the article from SSRN at the link.