The late Richard M. Weaver famously described private property as the “last metaphysical right.”  By this he meant that private property rights have intrinsic value apart from their social utility and necessarily rest upon concepts such as honor, responsibility, and hard work.  Nowhere is this observation truer than in the intricate realm of intellectual property, which concerns the creation and ownership of original ideas.

Washington Legal Foundation recently filed a brief in the U.S. District Court for the Southern District of New York urging it to reject an interpretation of a federal law that would effectively grant blanket immunity to website operators who tolerate and profit from copyright infringement.  The case, Viacom International, Inc. v. YouTube, Inc., is sure to have nationwide implications for copyright holders, recording artists, and content producers.  

Copyright laws exist to protect the creators and owners of copyrighted work from having their original works (e.g., books, music, or films) distributed without paying a royalty fee.  But with the exploding growth of the Internet and related technological advances, methods have been developed to make copyright infringement and piracy easier.  Websites such as YouTube encourage and facilitate the uploading of videos from Internet users to their website, including copyrighted videos and music owned by others.  Websites then display these copyrighted works or offer them to the public for free download.  Websites profit from this conduct by selling advertisements on the web pages that display the copyrighted videos.  The more popular a video, the more users who visit the website, and the more money the website collects in advertising revenues.

At issue in the lawsuit is whether YouTube qualifies for a safe harbor created by the Digital Millennium Copyright Act of 1998 (DMCA).  If the court finds that YouTube’s enterprise falls within the DMCA’s safe harbor protection, YouTube would be immune from monetary damages resulting from its ongoing facilitation of copyright infringement.  In its brief, WLF argued that, contrary to the position advanced by YouTube, Congress intended the DMCA to establish a regime of shared responsibility on the part of both copyright owners and Internet service providers to police against infringement and rigorously enforce intellectual property rights.

Because YouTube’s operations are very different from the kinds of passive, innocent service provider conduct that was before Congress when it enacted the DMCA, WLF urged the court to carefully consider the intent and purpose of Congress in passing the statute.  Although Congress could not fully anticipate the technological changes that would later confront the courts, the legislative history of the DMCA reveals that Congress was concerned by the dangers posed by large-scale infringement of copyrighted works over the Internet.  Congressional intent is especially important in this case, where the unique business model utilized by YouTube — deriving advertising revenue from user-generated content — was not in existence, or even contemplated, when the DMCA was crafted.

WLF’s brief was drafted with the pro bono assistance of Russell Frackman and Paul Montclare with the law firm Mitchell Silberberg & Knupp LLP.