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Thursday, June 24, 2010

Viacom v. YouTube: Why Are We Re-Litigating Grokster?
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"Again?" That was my reaction when I read the Opinion and Order issued last night by Judge Louis Stanton in Viacom v. YouTube. How ironic that the original YouTube--the "video Grokster" will now force the re-litigation of a minor variation of the same question answered unanimously by the Supreme Court in MGM Studios, Inc. v. Grokster, Ltd.

But so be it. I've seen this movie already. I think I know how its sequel ends.

In MGM Studios, Inc. v. Grokster, Ltd., a federal district judge held that a federal law--in that case, the Supreme Court's 5-4 decision in Universal City Studios v. Sony--created a "safe harbor" that protected from civil liability even corporations that intended to build Internet businesses based on mass piracy by using unprotected consumers as human shields against copyright enforcement so that mass piracy could become "start up capital for their product."

Personally, I never doubted that the district-court decision in Grokster would be overturned. It was absurd. Under then-existing law, corporations that intended to encourage or dupe even one consumer into infringing copyrights were committing federal crimes. See, e.g., 18 U.S.C. secs. 2, 241, 307, 2319. And corporations that intended to induce mass piracy were committing far more serious crimes by operating criminal "racketeering enterprises" within the meaning of the Racketeer-Influenced and Corrupt Organizations Act (RICO). See id. at secs. 1961-68.

Consequently, even though the meaning of the 5-4 majority opinion in Sony was deliberately obscure, one point seemed inarguable: it made no sense to imagine that Sony could have been intended to provide protection from civil liability to potential criminals or criminal racketeering enterprises. Predictably, in Grokster, every single Justice of the United States Supreme Court agreed that Sony had not created a "safe harbor" for any sort of potentially criminal conduct.

I would also suggest that the Court's unanimous decision in Grokster should have conveyed to federal district judges a message somewhat broader than the Court's actual holding. That message was simple: It is highly improbable that any federal law will ever create some "safe harbor" against civil liability for copyright infringement that protects any potentially criminal conduct. That result makes no sense whatsoever.

Alas, in Viacom Int'l, Inc. v. YouTube, Inc., another federal district judge has now held that another federal law--in this case, the hosting-site "safe harbor" codified in Section 512(c) of the Copyright Act--has created a "safe harbor" that protects from civil liability even corporations that intended to build Internet businesses based on mass piracy by using unprotected consumers as human shields to deter the enforcement of the federal civil rights of artists and mass piracy as "start up capital for their product."

Fortunately, this new decision is even less defensible than the district-court decision in Grokster that inspired the Grokster Defendants to disembowel themselves, (see n.1), when their case reached the Supreme Court. The 5-4 majority opinion in Sony was deliberately vague about the meaning of the rule of law it created. Section 512(c) is not--it is quite specific. For example, it expressly denies protections to any hosting site operator who "is aware of facts and circumstances from which infringing activity is apparent." 17 U.S.C. sec. 512(c)(a)(ii). As a result, in Viacom v. YouTube, Judge Stanton had to conclude that a hosting-site operator can actually know about and "welcome" "ubiquitous" mass piracy, yet be unaware of any "facts and circumstances from which infringing activity is apparent." The English language itself precludes that conclusion--as do all known principles of statutory interpretation.

Judge Stanton needs to certify his most implausible conclusions for immediate interlocutory review. He has accused Congress of speaking in tongues in order to create a civil "safe harbor" that protects even online racketeering enterprises that intend to endanger consumers so mass piracy can act as "start up capital for their products."

That is an extremely serious charge. If an unelected federal judge directs such dire accusations of misfeasance and malfeasance at the elected Members of the other two coordinate Branches of the federal government, immediate appellate review should follow as a matter of course.

posted by Thomas Sydnor @ 1:24 PM | Copyright , IP , Internet

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You are a horrible writer.

Posted by: Bryan Crumpler at July 1, 2010 2:29 PM

I agree with Bryan. You were also wrong.

Also, you're being disingenuous in saying

"As a result, in Viacom v. YouTube, Judge Stanton had to conclude that a hosting-site operator can actually know about and 'welcome' 'ubiquitous' mass piracy, yet be unaware of any 'facts and circumstances from which infringing activity is apparent.'"

If Viacom itself cannot determine which youtube videos are authorized and which are not, clearly it is impossible for Google to know.

But, keep typing what you're (clearly) paid to type.

Posted by: Joe at July 1, 2010 4:16 PM

Bryan and Joe, thank you for your thoughts.

I would be the first to admit that writing is like living: The best that most of us can hope to achieve is to spend our entire lives trying hard to become less bad at it.

That said, I do think “horrible writer” may now be a tad harsh as applied to me. I would reserve the term “horrible writer” for those whose writings consist of unsupported, conclusory insults in which “reasoning” consists of hurling the adverb “clearly.”

And, Joe, my account of what Judge Stanton held is correct. He did not rest his holding on the ground that you suggest. Perhaps you would have; he did not. --Tom

Posted by: Tom Sydnor at July 14, 2010 10:01 PM

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