Two years ago, Spanish-born movie tycoon Carlos Vasallo sued YouTube at a Florida federal court over various piracy-related claims.
The actor and producer own the rights to the world’s largest collection of Mexican and Latin American movies, many of which are illegally shared on YouTube.
The lawsuit accused YouTube of not doing enough to stop people from uploading pirated content. Those allegations aren’t new, but the movie tycoon also said that YouTube would not allow him to join the Content ID copyright protection program unless he agreed to specific terms, including a revenue share agreement.
Vasallo refused these terms and chose to send standard DMCA notices instead. YouTube processed them, as it should, but the movie tycoon complained that this did little to stop pirates. New copies were constantly uploaded and banned users reportedly returned under new aliases.
Motions of Summary Judgment
YouTube and Google vehemently disagreed with the copyright infringement allegations and filed a motion to dismiss. This was partially successful as the Florida federal court dropped the antitrust claims, but the infringement allegations remained.
As the case progressed, both parties submitted motions for summary judgment, which were filed under seal.
The movie tycoon alleged that, because YouTube only took down reported videos and failed to use its piracy filtering technology to find and voluntarily remove similar videos, the platform is liable for direct and secondary copyright infringement.
YouTube also submitted a motion for summary judgment to establish that it does nothing wrong. According to the company, the DMCA doesn’t require platforms to proactively monitor uploads, on the contrary. Also, the movie tycoon failed to provide any evidence that YouTube was aware of ‘non reported’ infringing videos.
Both motions for summary judgment landed on the desk of Magistrate Judge Edwin Torres, who issued a detailed report and recommendations yesterday. The Judge sides with YouTube and concludes that since the movie tycoon has no triable case, the lawsuit should be closed.
Under the DMCA, platforms such as YouTube are required to respond to takedown requests. In this case, there is little doubt that the video platform did so. However, the movie tycoon argued that it should have used its piracy filtering technology to find similar videos and remove these as well.
This piracy detection technology, as used by the Content ID system, is separate from the DMCA takedown process. According to Vasallo, however, YouTube can and should have deployed this to remove videos that were similar to the ones he reported though DMCA notices.
In other words, the film tycoon argues that YouTube was required to voluntarily find pirated videos on its platform. Because it failed to do so, the company should be held liable for copyright infringement.
This conclusion goes too far, according to Judge Torres, who notes that courts have repeatedly rejected the theory that online platforms have “red flag knowledge” of infringing content because they use filtering or monitoring tools. In fact, this argument goes directly against the DMCA.
“As multiple rulings have put it, requiring ISPs to use their technologies to identify infringing items out of their own initiative would be a violation of the DMCA’s non-monitoring and copyright policing principles.”
Online platforms are allowed to use monitoring tools, as YouTube does with its Content-ID system. However, this doesn’t mean that this automatically makes it aware of all potential copyright infringements on its platform.
“Thus, we find that Athos’ theory that specific knowledge of non-noticed infringing clips can be ascribed to Defendants by virtue of YouTube’s copyright management tools fails as a matter of law,” Judge Torres adds.
A Brick DMCA Wall
No matter how the movie tycoon puts it, he eventually runs “headlong against a brick wall erected by the DMCA,” according to Judge Torres. The DMCA simply doesn’t require YouTube to remove content that isn’t specifically identified.
“[C]harging YouTube with the affirmative obligation of going beyond the specific URLs identified in Plaintiff’s DMCA takedown requests would in effect shift from the copyright owner to the ISP the burdens of policing and identifying infringement on its systems.”
Interestingly, the situation in Europe is different. Local law requires large platforms to do more than just process takedown notices. However, Judge Torres doesn’t mention Europe, and focuses on the law his court is required to enforce.
While copyright holders may feel that online platforms should do more, that’s not a requirement under the DMCA.
“The question before this court is not what YouTube or other ISPs should be required to do, but whether YouTube’s acts are consistent with the statutory scheme set forth by the DMCA as currently enacted.
“And while Plaintiff would like for this court to substitute the existing DMCA ‘notice and take-down’ regime for an amorphous “notice and stay-down” mandate, we cannot do this just because it makes sense from a copyright holder’s perspective,” Judge Torres adds.
No Evidence, No Case
In addition to the finding that YouTube didn’t have red flag knowledge, the Judge also finds that the evidence lacking. Nothing on the record even suggests that YouTube or its employees were aware of any non-reported infringing activity.
“Here, Athos has failed to present any tangible evidence to establish that, had YouTube used its video-detection technology as it suggests, the software would have identified, blocked, or removed any of the specific clips-in-suit in dispute in this case. This evidentiary deficit is fatal to Athos’ case.”
To top things off, Judge Torres doesn’t see any evidence that YouTube could control the infringing activity it wasn’t aware of, or that it specifically profited from the alleged infringements.
The recommendation concludes that the court should grant YouTube and Google’s motion for summary judgment, establishing that it’s protected by the DMCA’s safe harbor. At the same time, the movie tycoon’s motion for summary judgment is denied.
In closing, it’s important to note that yesterday’s report and recommendation have yet to be taken over by the court and while that often happens, there are no guarantees. In any case, YouTube will surely see this as a preemptive victory.
A copy of the report and recommendation, issued by Florida federal court’s Magistrate Judge Edwin Torres, is available here (pdf)