Viacom/YouTube aftermath: Will video sites stop filtering content?

By Eriq Gardner

One question that needs to be asked in the wake of Google's win over Viacom in the YouTube case is whether Google could have gotten away with doing less about copyrighted content on the video-sharing platform.

Judge Louis Stanton noted in his ruling that service providers must deal with unauthorized copyrighted material if they have actual knowledge of its existence. If they don't have actual knowledge, the burden shifts to copyright holders to identify the infringement and inform the service provider. Judge Stanton dismissed the case because he found that Google did act expeditiously when told by Viacom of copyrighted works on the site.

But if Google only has to act when it receives a takedown notice, does that mean it can sit back in blissful ignorance and put the onus all on copyright holders? YouTube has often touted its content-filtering technology that helps identify infringing works on the network. Given Stanton's ruling, perhaps filtering technology isn't required for service providers to claim safe harbor from liability.

Hollywood seems to be reading that message from the decision.

"At a time where there is more talk about service providers becoming proactive in the course of their normal routines, this opinion comes along and says you can be willfully blind," says Cary Sherman, president of the RIAA, who agrees that the decision potentially opens the door to ISPs dropping their filtering technology. 

At this stage, YouTube probably won't roll back its filtering system. But what about all those web start-ups that have to decide whether to invest in expensive copyright-policing technology? What kind of road map towards escaping liability are they now getting?

"Having tools like filtering helps show the court you are a good actor, but clearly, from a reading of the legislation and from the court decisions, it's not an obligation," says Michael Elkin, a partner at Winston & Strawn, who is representing Veoh in an important case testing safe harbor for ISPs before the 9th Circuit Court of Appeals.

ISPs might also take another equally important lesson from Judge Stanton's decision in how to escape liability. Since Stanton let YouTube off the hook because he was impressed by its takedown regime, other service providers will likely try to travel the same route. But after being sent a takedown notice, will they stop to consider "fair use" before removing an allegedly infringing video?

If they're emulating YouTube, sometimes they won't.

We've already seen people, from high-profile individuals like John McCain to low-profile ones like Stephanie Lenz, try to stand up to YouTube for not putting up a bigger fight against takedown notices. Some of the folks cheering Judge Stanton's decision are the same ones who believe that entities like YouTube should do more to examine the merits of a takedown notice before pulling a claimed video.

Carey Ramos, a partner at Paul Weiss, believes that Judge Stanton's decision will result in Hollywood showering service providers with more takedown notices. "And the service provider will have an incentive to make a knee-jerk response and take the content down," he adds.

If the onus shifts to copyright holders to make takedown demands, we can be sure they'll pursue them with vigor. And if ISPs don't want to get in trouble with the law, we can be equally certain they'll hardly put up much of a fight.

In other words, service providers will be passive-aggressive when it comes to copyright enforcement. Is that really what people want?