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YouTube’s failure to use filtering does not make it liable for copyright infringement, Public Knowledge today told the U.S. Appeals Court for the 2nd Circuit.
The brief is available here.
Requiring filtering would be “in direct contradiction to both the plain meaning and the purpose of the DMCA (Digital Millennium Copyright Act)” PK argued, noting that the law does not require monitoring, much less using specific software filters.
In an amicus brief, filed as part of Viacom’s billion-dollar copyright infringement case against YouTube, PK argued that while software may be able to identify copyrighted content in any given video, it cannot “make reliable legal determinations about when and whether specific uses of that content are infringing.”
Technical accuracy in identifying content is not the same as legal accuracy, Public Knowledge told the court, arguing that “an automated, software- based warning of content matching is a far cry from an actual court ruling that infringement has occurred. Automated filters cannot reliably determine when and whether specific conduct is infringing.”
Unauthorized use of copyrighted works are not infringement if they fall under fair use exemptions, PK said. Even a small percentage of mistakes would result in thousands of videos being taken down, and the result would be a chilling of speech, PK argued.