Business Law Case Assignments

Case 1.2: Viacom International, Inc. v. YouTube, Inc.

1. What is the difference between Grokster’s and YouTube’s roles in infringement claims?

The differences between Grokster’s and YouTube’s roles in infringement claims lie primarily in the intent of the services provided and the diligence displayed in facilitating the removal of flagged copyright violations. Grokster’s service was deemed to have no other purpose than to allow users to share copyrighted files using their platform. This was evidenced by several facts: over 90% of their files contained copyright infringement, they made no attempt to remove those files flagged that were red flagged, and ultimately profited on advertising space aimed at largescale software use.

YouTube, on the other hand, had a platform that allowed users to post all sorts of content, identified the risk of copyright infringement, and took action to establish a department to receive infringement complaints to subsequently review and remove those files. With YouTube, the primary purpose of the service was for video uploading, not piracy, and did their due diligence in policing against flagged violations.

2. Why does the DMCA not require YouTube to search for infringing videos that have been posted?

To protect against infringement, the DMCA established the “red flag” clause in Subsection 512 (c)(1)(a)(ii) that states that a service provider does not have to actively monitor or seek infringing activity; however, once aware, the provider is obligated to remove the content. This clause does go on to require providers to remove sections of a website or service that are known to be a pirate directory.

The DMCA ultimately provides YouTube a “safe harbor” against having to actively search for infringement due to their establishment of an agent who received, reviewed, and removed material based on infringement complaints. YouTube proved to act a swift and compliant manner when working with companies like Viacom. The DMCA does...