Brief of Amici Curiae National Alliance for Media Art and Culture, the Alliance for Community Media, and Kartemquin Films in Viacom v. YouTube

Abstract

This case presents important doctrinal, technical, and theoretical issues for online platform users and innovators - especially for independent voices that rely on open online platforms to reach audiences. Online media platforms like YouTube offer independent media artists opportunities to reach national and global audiences that did not exist in the offline world.

Before online platforms, artists and creators were subject to the physical limitations and editorial gatekeepers of traditional media outlets - movie theaters, television, radio, and the like - which often limited their reach. This was especially true for underrepresented voices. Online platforms changed this equation by dramatically lowering the barriers to media dissemination and by giving artists, rather than gatekeepers, the power to decide what information is worthy of broadcast.

For this reason, these platforms have revolutionized both who can reach wide audiences and how artists and creators reach those audiences. Voices long neglected by or underrepresented in mainstream media can find room on online platforms. Online platforms have also greatly increased creator-to-creator and and creator-audience interaction by removing geographic and temporal barriers and allowing for communication and collaboration. This capacity has fueled an enormous amount of expressive activity, including collaborations that range from art projects to international political movements.

In this amicus brief, organizations that represent independent media artists ask the court to consider the impact on independent voices of lowering the standard for platform liability under the Digital Millennium Copyright Act’s Section 512 safe harbor. The brief argues that the safe harbors have made the shift described above possible by giving OSPs the legal certainty they need to innovate new offerings and to provide open access to online platforms. It further argues that the proper liability threshold for when OSPs are held liable for the copyright infringement of users is critically important to to these benefits. Too low, and, fearful of liability coupled with the practical difficulty of determining the difference between lawful and illegal content, OSPs are likely to filter or otherwise restrict material on the platform. Additionally, a low standard would likely chill innovative and emerging online platforms instead of encouraging them, thus reducing competition in the online platform market and limiting the ability of independent media artists to reach a wide range of audiences.

Ultimately, such a result would greatly diminish the richness and diversity of expression currently available to the public via the Internet. Amici therefore urge the court not to adopt a new, lower willful blindness standard that would require much more policing of networks.

Keywords: copyright, safe harbors, DMCA, 512, secondary liabiilty, platforms, fair use, expression, Internet platforms, YouTube, Viacom

JEL Classification: K00