Hinkhouse Williams Walsh

HWW Attorneys John T. Williams and Craig W. Mandell Published in the AIPLA Quarterly Journal

The American Intellectual Property Law Association (AIPLA) this week published in its quarterly journal an article authored by HWW attorneys John T. Williams and Craig W. Mandell titled “Winning the Battle, But Losing The War: Why The Second Circuit’s Decision in Viacom Int’l, Inc. v. YouTube, Inc. Is A Landmark Victory For Internet Service Providers”. The AIPLA is a national bar association with approximately 16,000 members constituting individuals, companies and institutions involved in the practice of patent, trademark, copyright and unfair competition law, as well as other fields of law affecting intellectual property.  

The article was circulated to all of the AIPLA’s approximately 16,000 members on Monday.  It also will be published on Westlaw and LexisNexis, and is available on the AIPLA’s website for AIPLA members (See http://www.aipla.org/learningcenter/library/books/qj/Pages/Quarterly-Journal-41-2.aspx). 

Below is a one-paragraph abstract summary of the article:

The U.S. Court of Appeals for the Second Circuit’s April 5, 2012 decision in the billion-dollar copyright infringement case Viacom International, Inc. v. YouTube, Inc. greatly benefits online and internet service providers by creating more certainty regarding the scope of protection given to service providers under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).  The Second Circuit specifically held that under the DMCA: (i) the burden of investigating infringing online content is placed on copyright owners and not on service providers; (ii) a service provider is precluded from safe harbor protection only if it gains knowledge of “specific infringing” content and fails to expeditiously remove or block it; and (iii) the doctrine of willful blindness does not impose on a service provider “an affirmative duty to monitor” its website for infringement.  By placing the burden of investigating infringing online content on copyright owners and the burden of removing all specifically identified content on service providers, the Second Circuit upheld Congress’s intent when enacting the DMCA to “preserve strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”