Judge rules against Viacom in its lawsuit against YouTube and Google

Says attorney Robert Clarida, the partner in charge of the copyright practice at Cowan, Liebowitz & Latman in New York, "Under section 512, a service provider cannot have actual or constructive knowledge of infringement and retain "safe harbor" protection [from legal liability for infringement]." Although such protection is a strong shield granted by the law, service providers on the Internet cannot "ignore or turn a blind eye to red flags of infringement," adds Clarida.

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Judge Stanton found that YouTube had shown sufficient diligence about copyright infringement by promptly removing any videos when it learned that they were copyright protected. On Feb. 2, 2007 Viacom informed YouTube that around 100,000 videos on the site violated its copyright. By the next business day YouTube have eliminated almost all of the copyright protected videos. No small feat, especially when you consider that roughly 24 hours of new video is put on YouTube every minute.

Judge Stanton rejected the Viacom case by what is called "summary judgment." He just decided what the facts were and how the law should be applied. There was no trial by jury, no adversarial establishment of facts by evidence before the court. Although the case was important because the plaintiff and the defendant are such important companies, and the principles at stake are consequential, legal authorities such as Clarida say that the ruling sets no new legal precedents.

Viacom has vowed to appeal. The company views the judge's decision as "fundamentally flawed." And it wouldn't be unprecedented for a case decided by summary judgment to be reversed on appeal.

"I was a little surprised," says Clarida, who writes a regular column on copyright law for the "New York Law Journal" and is on the Board of Directors of the American Intellectual Property Law Association. "I thought it looked as if there were issues of fact. For YouTube to win on summary judgment was a surprise to me."

It didn't surprise Kent Walker, Google's general counsel, who described Judge Stanton's decision as "thoughtful, thorough, and well-considered." He praised the ruling, saying it would benefit those who wish to express their creativity online.

Although the ruling was decisive, this may be only the first round in a case that has already dragged on for over three years.

Shares of Viacom (NYSE:VIA.B) closed down 3.35 percent (- $1.18) at $34.09. Google (NASDAQ: GOOG) closed down 1.14 percent (- $6.95) at $475.10.