April 14, 2012

Jenner & Block recently achieved a significant victory for its client Viacom International Inc. when the Second Circuit revived Viacom’s $1 billion copyright lawsuit against YouTube and Google, Inc. by vacating a lower court’s ruling and remanding the case. In the case, Viacom asserts that the defendants are liable for infringement of Viacom programs on YouTube. In June 2010, the lower court granted summary judgment to Google and YouTube, holding that they were protected from copyright infringement liability under the Digital Millennium Copyright Act’s safe harbor provision. On April 5, the Second Circuit ruled that the district court had misapplied the Act and insufficiently analyzed the evidence.  On remand, the district court will consider, among other things, whether YouTube had specific knowledge of infringement, or was willfully blind to such activity, or exercised sufficient control to be held responsible for the infringing material posted by users.

The victory received extensive press coverage and Jenner & Block Partners Paul M. Smith and Scott B. Wilkens are quoted in several articles. In a New York Law Journal article, Mr. Smith says, “YouTube was turning a blind eye to infringing content. They were fully on notice there (was) tons of material up there on which they were making money." In a Financial Times article, Mr. Wilkens discussed the instructions to the district court saying, “The district court has been told to consider whether YouTube’s founders displayed a ‘willful blindness’ to copyright infringement. Such a finding would undermine YouTube’s legal defenses. That puts all of the clips potentially at play.” The Jenner & Block team included Partners Matthew S. Hellman, Susan J. Kohlmann, Paul M. Smith and Scott B. Wilkens, Of Counsel William M. Hohengarten, Associate Rochelle P. Lundy and Paralegals Allison Crowe and Albert Peterson.

Please see links below for a selection of press coverage.,0,2331723.story;lst;8