In the ongoing wars between copyright rights holders and online content providers who make available others’ copyrighted works without a license, the U.S. Court of Appeals for the Second Circuit recently rendered a decision in a closely watched battle between Viacom and YouTube.[FOOTNOTE 1] The court was required to interpret one of the safe harbor defenses from the 1998 Digital Millennium Copyright Act in light of YouTube’s activities during the period from 2005, the year YouTube was launched, through 2008. Neither side emerged triumphant.
Civil suits that vanquished Aimster, Grokster and others have not restored exclusive online control to rights holders over their works, and one reason is the safe harbor defense for “service providers” afforded by the DMCA. When the defense applies, the defendant is protected from monetary claims for direct copyright infringement and secondary infringement (vicarious, contributory, and inducement liability). Its shelter is not available to everyone, however. The DMCA was no help to Aimster and Grokster because the former invited users to infringe repeatedly and disabled itself from doing anything to stop it,[FOOTNOTE 2] and the latter similarly partook of “purposeful, culpable expression and conduct.”[FOOTNOTE 3]
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