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Research: Viacom-YouTube=Grokster Part 2?

By 18 August 2010 4 Comments

Grokster Redux: Why the Summary-Judgment Ruling in Viacom v. YouTube Should Be Reversed
The Progress & Freedom Foundation
Thomas D. Sydnor II
August 2010

Similar to the MGM Studios, Inc. v. Grokster, Ltd. case, the “safe harbor” clause of the Digital Millennium Copyright Act (DMCA) protected YouTube’s founders from civil liabilities because they had responded to take down notices.  In the process of doing this they were also allowing for copyright violations and piracy just like the Grokster case.

Because of this, Sydnor feels that the recent Viacom Int’l, Inc v. YouTube, Inc. case is just a repeat of bad judicial decisions allowing for individuals to receive safe harbor even though the government classifies their actions as criminal racketeering enterprises.  Additionally he feels that, “The Supreme Court has repeatedly held that ‘[w]hen Congress codifies a judicially defined concept; it is presumed… to adopt the interpretation placed on that concept by the courts.’ Therefore, the DMCA did not adopt judge-defined terms intended to convey the lack of any knowledge requirement in order to tell judges that Congress intended to impose an item-specific knowledge requirement.”

In this article, Sydnor considers the following:

  1. How the Viacom Opinion created a “safe harbor” for corporations that profit by intentionally massive copyright piracy.
  2. The elephant in the mousehole: Did President Clinton and Congress really create civil “safe harbors” for criminal racketeering enterprises?
  3. The “ordinary-meaning rule” proves that the DMCA was not intended to mean the opposite of what legislators should have understood it to say.

Based on the notion that the government has created a safe harbor for criminal enterprise and that the codification of a defined concept is being twisted, Sydnor believes that the ruling will be reversed.

You can find the full article here.


  • Tom Sydnor said:

    Nick, thanks for the link. I really find it disturbing that we have to re-litigate the very issue litigated to death in Grokster in the hope that federal courts will again re-confirm that it would be incredibly absurd to conclude that any federal law–unless it did so very explicitly– was intended to create a civil safe-harbor for potentially criminal wrongdoing. –Tom

  • Tech at Night: RIAA, DMCA, Viacom, Google, Gun Owners of America, Free Press | RedState said:

    […] of bad laws, the DMCA is in the news again. One provision of the Digital Millennium Copyright Act turned Internet hosting proficers into […]

  • Garrett said:

    I’ll repeat a question posed to you (Digital Society) earlier on this topic which received no reply.

    Being that Google is one of the most proactively DMCA compliant companies on the internet and yet still fails your expectations for safe harbors, please name one (1) company who would qualify for safe harbors who accepts user generated content (without full review).

    You lack of an answer previously says to me that no such entity exists and that your expectations are impossible. I look forward to your attempts to justify this is not the case.

  • Nick R Brown (author) said:

    Not a problem. Happy to link to good and interesting work.

    I have no idea what you’re talking about. I have never posted anything on DMCA compliance. I would suggest that if you have a pertinent question, you find the author of the previous work and email him. Randomly commenting on posts to authors that have no idea what you’re talking about will get you no where no matter how many times you’ve seen Ferris Bueller.

    And all of that is not even to mention that research posts are not commentaries. I simply regurgitate the content in the article to summarize it. So really Tom Sydnor is the professional that you should be directing your comment to.