Athos Overseas Limited Corp. v. YouTube, Inc. et al. was a case from the Eleventh Circuit originating from the Southern District of Florida in which Athos Overseas (“Athos”) alleged copyright infringement against YouTube based on the unauthorized posting of its copyrighted material. Following discovery, Athos filed a motion for partial summary judgment and YouTube filed its own motion for summary judgment.
Athos owns the rights to classic Mexican and Latin American films that were posted on YouTube without its permission. It claimed that YouTube was not protected by the safe harbor provision of the Digital Millennium Copyright Act (“DMCA”) for internet service providers (“ISPs”) because YouTube’s technology was sufficient to identify and stop infringing conduct. The district court granted summary judgment to YouTube and the Eleventh Circuit affirmed.
At the heart of this case, there was a lot of focus on a technology called hashing that YouTube used to identify infringing content on its site. Hashing is the practice of converting aspects of a video file’s output into text that can be used to compare a potentially infringing file to one provided by the rightsholder. Using this method, a comparison can be performed without keeping a full copy of the media on file.
A rightsholder who reports an infringing video is then able to monitor the platform for its content using YouTube’s tool called the Content ID system. Importantly, YouTube puts the responsibility on the rightsholder using the Content ID system to detect any infringing files that gets past the filter. The plaintiff admitted that YouTube responded to actual notice of infringement but also asserted that YouTube generally should have detected other infringement from different accounts with slightly changed titles and subject matter, but the same content.
In trying to impeach the Content ID system, the plaintiff relied heavily on the deposition transcript of the witness who represented YouTube (the “30(b)(6) witness” who was supposed to have knowledge and ability to testify for the corporation). This proved less than fruitful as the witness asserted that he did not have expertise to answer some of the questions plaintiff’s counsel asked.
The district court had looked to the Second Circuit’s Viacom v. YouTube decision to determine whether the defendant, based on actual knowledge of certain infringements, also had constructive notice of other infringements (“red flag knowledge”). The appeals court reviewed the distinction of actual knowledge of infringement and red flag knowledge of infringement.
In affirming the denial of summary judgment to the plaintiff, the 11th Circuit said plaintiff was envisioning a technology that YouTube neither had, nor was required to develop. Congress had made the safe harbor provision of the DMCA for a purpose, the court said, which was to allow ISPs to do their business without having to spend inordinate amounts of time and resources on determining whether something is infringing. Instead, that burden was on the user to give notice, and plaintiff in this case admitted that YouTube had responded to its takedown notices. The court granted YouTube’s motion for summary judgment.
In hindsight, it seems curious that the plaintiff accepted YouTube’s witness as a sufficient representative for YouTube’s deposition. Perhaps plaintiff’s counsel didn’t learn that the representative lacked knowledge to testify about relevant areas until the deposition took place — and the discovery order didn’t allow for additional time to take another person’s deposition. Or perhaps the request for testimony wasn’t specific enough to get someone who could answer some of the technical questions that plaintiff asked. The testimony ultimately didn’t help Athos’s case, as the court instead cited portions of the testimony against Athos.
In the end, summary judgment for YouTube was affirmed. Between you and me, I think that sounds like the right result, even if better discovery may have helped.
