Fordham Law

IPIL Clinic Files Amicus Brief in Important YouTube Case

April 18, 2011

In an IP case that could have far-reaching consequences for YouTube, Facebook, and other popular websites that include user-generated content, Fordham Law's Samuelson-Glushko Intellectual Property and Information Law Clinic has filed an amicus brief.

The case pits media conglomerate Viacom against online service provider YouTube and will determine whether video-sharing sites are legally responsible for copyright infringement when individual users upload copyrighted material to these sites. A federal district court judge ruled in favor of YouTube; Viacom has appealed to the United States Court of Appeals for the Second Circuit.

On behalf of a group of creative organizations and individuals—including Academy Award–winning director Michael Moore and viral video star Adam Bahner (better known as Tay Zonday)—who post original content on YouTube, Professor Ron Lazebnik, director of Fordham Law's IPIL clinic, and eight clinic students filed a brief contending that Viacom’s position would have a chilling effect on original, creative online content and possibly lead to the demise of sites like YouTube.

"This case could affect how all online service providers behave from this point forward," said Professor Lazebnik. "If the court rules in favor of Viacom, future online service providers may find it too risky to establish a web presence, and this would stifle creativity. It could have a real silencing effect on the Internet overall."

When Congress passed the Digital Millenium Copyright Act in 1998, it included a Safe Harbor provision that removed the liability online service providers would otherwise face if individual users uploaded copyrighted material. Viacom argues that the Safe Harbor protection is forfeited when the online service provider becomes generally aware that some of its users may be uploading infringing content. The brief argues that Viacom has erroneously reinterpreted the degree of knowledge an online service provider must have before it is no longer eligible for Safe Harbor protection.

The Fordham Law students who helped research and draft the brief are Addie Bendory '11, Peter Bogard '12, Andrew Cabasso '12, Joseph De Metro '12, Michael Garcia '11, Rakiat Gbadamosi '11, Daniel Gross '11, and Joseph Jones '12.

Other amicus briefs supporting YouTube were filed by eBay, Facebook, Human Rights Watch, MP3tunes, and the National Alliance for Media Art and Culture, among other organizations.

Contact: Stephen Eichinger