As expected, in its answer to Viacom’s copyright infringement suit, Google emphasizes that Viacom’s suit contradicts the principles of the Digital Millennium Copyright Act (”DMCA”).

The first paragraph of Google’s answer cuts to the chase:

Viacom’s complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the internet as an important new form of communication. By seeking to make carriers and hosting providers liable for internet communications, Viacom’s complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well above and beyond what the law requires.

However, Viacom believes that Google’s response “misses the mark“:

“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”

So what is the level of “knowledge” that prevents an internet service provider from enjoying the safe harbor provisions of the DMCA?

To enjoy the safe harbor provisions of 17 U.S.C. § 512(c) an internet service provider must demonstrate that it (1) does not have actual knowledge that the material or an activity using the material on the system or network is infringing, and (2) is not aware of facts or circumstances from which infringing activity is apparent.

The court in Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1108 (W.D.Wash. 2004) explains that actual knowledge requires more than a “general awareness that a particular type of item may be easily infringed.” Instead, the issue is whether defendant “actually knew that specific… vendors were selling items that infringed [plaintiff’s] copyrights.” As to apparent knowledge, the court states the following:

In determining whether a service provider is “aware of facts or circumstances from which infringing activity was apparent,” the question is not “what a reasonable person would have deduced given all the circumstances.” Instead, the question is “whether the service provider deliberately proceeded in the face of blatant factors of which it was aware.” As articulated by Congress, apparent knowledge requires evidence that a service provider “turned a blind eye to ‘red flags’ of obvious infringement.” [citations omitted]

The court gives some examples of terms that qualify as “red flags.” These include words like “pirate” and “bootleg” that are apparent from a “brief and casual viewing” of a website.

Do you believe that Google qualifies for the safe harbor provisions of the DMCA, or do you believe Viacom has a valid argument?