Appeals Court: You Can’t Sue YouTube Because It Didn’t Ban An Account You Accuse Of Copyright Infringement
Last year, we wrote about the really bizarre case of a website called Business Casual" that filed a couple of copyright infringement lawsuits. One was against TV-Novosti, the Russian state-owned news organization that runs RT (formerly Russia Today). While there was a brief period of time in which RT pretended that it wanted to be a respected global news brand a la the BBC, it didn't take long before it became a propaganda arm for Vladimir Putin.
Business Casual claimed that RT's Arabic channel had pulled some clips from some of Business Casual's videos that were potentially infringing. The case had a bunch of twists, including that many of the images were based on public domain images, but which Business Casual had modified using what it refers to as its parallax" technology to take static images and give them a 3D feel. Whether or not there was a fair use argument (or a lack of copyright on the images argument) to be made didn't much matter, because after initially responding to the lawsuit, TV-Novosti eventually just decided to ignore the case, leading to a default judgment.
After the default judgment there was another bit of a twist in the case, in which a Moscow-based executive from TV-Novosti sent a letter to the court asking the court to appoint an attorney to represent TV-Novosti, noting that because of various EU and US sanctions against Russia due to the Ukraine invasion, no banks will work with TV-Novosti, and thus it cannot figure out how to pay a US lawyer to represent it in court. The company says it needs a lawyer because it knows that corporations cannot appear pro se, and thus asks the court to appoint one for it.
The court's response was that TV-Novosti is correct that it cannot represent itself in court, and notes that the letter requesting an appointed counsel was... the company representing itself in court, and therefore even that request for counsel got stricken from the docket, since there was no authority to file it. The court did suggest that TV-Novosti could reach out to the NY Legal Assistance Group to see if it would provide counsel, but no lawyer ever showed up, and thus the default judgment stood and the case was closed.
No matter how strong the argument may have been in that case, the second case that Business Casual filed was just dumb. It also sued YouTube, basically arguing that in allowing RT Arabic to infringe on Business Casual's copyright (already potentially questionable), YouTube was itself infringing on Business Casual's copyright.
And, again, things got weird in the case. Business Casual's lawyer kept filing for extensions, claiming that the owner/operator of Business Casual, Alex Edson, was dealing with severe" health problems and was in agonizing pain and cannot function." Yet, just as Business Casual's lawyer was saying that to the court, Edson was in the process of releasing a nearly two hour long overly dramatic video (complete with a Putin impersonator explaining copyright law badly) about how YouTube's lawyers were liars and the failure to take down the RT-Arabic account was because YouTube was an anti-American company.
Anyway, the court tossed out the lawsuit against YouTube, noting that nothing YouTube did violated copyright law.
Business Casual appealed, and now the 2nd Circuit Appeals Court has upheld the lower court ruling with a summary order (basically this is such a waste of our time, we're not even going to write a real opinion") that is just a few pages saying everything about this case is stupid, the lower court got it right, why are you bothering us?"
It affirms the lack of contributory or vicarious copyright infringement by YouTube, which is standard fare. Indeed, the order notes that Business Casual's own filings seem to admit the basic facts that show that YouTube was neither contributorily or vicariously liable:
Rather, the amended complaint states that TV-Novosti took active steps to conceal its infringement by removing Business Casual's watermark from the images in question, replacing it with its own watermark, and removing the color from Business Casual's videos. According to the amended complaint, these steps by TV-Novosti allowed it to evade detection from YouTube's copyright-detection technology." App'x at 299. Moreover, the amended complaint established that YouTube promptly removed the three videos at issue from its platform once it became aware of the alleged infringement, and these videos remain unavailable.
Business Casual's own allegations reveal that YouTube did not materially contribute to, but rather acted to remedy, TV-Novosti's infringement. Apparently recognizing that these allegations undermine a plausible claim, Business Casual concedes in its brief that its claims do not arise from a failure by YouTube to detect, prevent, or acknowledge the infringement" by TVNovosti and are, thus, [u]nlike typical cases involving secondary infringement."
So having admitted in its own pleadings that YouTube couldn't actually be liable for copyright infringement, the entire case hinged on the idea that YouTube was liable for not banning the RT-Arabic YouTube account under its repeat infringer policies.
But, this is... not how the DMCA works. As the district court initially explained (and which Business Casual's lawyer seemed not to understand), the DMCA's requirement for a repeat infringer policy is just part of the requirements for being eligible for the DMCA's safe harbors, and does not create its own cause of action. But, Business Casual appealed that decision, and the 2nd Circuit points out that, no, the lower court was exactly correct:
Business Casual devotes much of its brief to arguing that YouTube's failure to terminate TV-Novosti's channels after it received three notices of infringing conduct is inconsistent with YouTube's Repeat Infringer Policy. Business Casual argues that YouTube's inconsistent practices should result in the withdrawal of safe harbor protection" under the DMCA. Appellant's Br. at 18. However, we agree with the district court that Business Casual's attempt to assert an independent claim against YouTube based on its alleged failure to consistently apply its Repeat Infringer Policy is entirely misplaced.
The DMCA safe harbor provision that Business Casual relies on is an affirmative defense that a defendant may assert when a plaintiff sufficiently alleges a viable claim of prima facie copyright infringement. See 17 U.S.C. 512(l) (The failure of a service provider's conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense."); see also Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 94 (2d Cir. 2016) ([T]he safe harbor is properly seen as an affirmative defense, and therefore must be raised by the defendant."); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004) ([T]he DMCA is irrelevant to determining what constitutes a prima facie case of copyright infringement."). In other words, there is no affirmative cause of action for any alleged failure by YouTube to apply its Repeat Infringer Policy in accordance with the DMCA's safe harbor provisions. As discussed above, Business Casual has not sufficiently alleged a plausible claim for contributory or vicarious copyright infringement. Thus, the district court properly determined that it need not reach the applicability of the safe harbor" affirmative defense under the DMCA.
And thus, YouTube's win over Business Casual is affirmed. I await the two hour YouTube video from Business Casual (perhaps they can bring back the Putin impersonator) mis-explaining the DMCA, and claiming that the panel of judges on the 2nd Circuit are anti-American.