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In 2006 Viacom, the conglomerate that owns Paramount and Dreamworks, launched a law suit against Google for copyright infringement, reportedly seeking damages of over $1 billion. This was because of Google’s use of copyright material on its video-sharing site YouTube which, Viacom alleges, is a lucrative business that derives its success from the illegitimate exploitation of creative works. Viacom claims that its material had been viewed without consent over 1.5 billion times.

Google claims that it is protected by the “safe harbour” defence found in the Digital Millennium Copyright Act (DMCA), passed by the US legislature in 1998. This defence acts as a liability shield to ISPs, web hosts and search engines when faced with copyright infringement allegations. It provides that such companies do not have to actively prevent illegal activity by internet users, but when notified of infringing content, they must seek to remove that content in an expeditious fashion. A further problem was that even when Google did remove certain content, YouTube users would often subsequently re-upload it.

Viacom lodged its law suit in the US District Court for the Southern District of New York last year seeking an award of damages. By way of response, Google referred to the “safe harbour” defence and to the fact that it had implemented new measures (such as a video monitoring system) in order to assist it in the faster removal of protected content. Furthermore, Google alleges that Viacom threatens the legitimate free-exchange of information online, and that an adverse ruling against Google would have significant repercussions on the way internet use has thus far developed.

The outcome of this multi-million dollar law suit is still on the horizon, and given the financial strength of the two litigants, arguably settlement is unlikely and a visit to the Supreme Court concerning the interpretation of the DMCA is foreseeable. Viacom could test the extent of the “safe harbour” defence (there is currently no case law on what amount of time is reasonable when determining if infringing content has been removed “expeditiously”). Further guidance is needed on the liability of ISPs, and other such service providers, for content that is uploaded by customers.

However, regardless of the trajectory that this unpredictable litigation will take, this is quite clearly an issue that has resonance outside of the US jurisdiction, which illustrates the need for some form of international compliance standard. Even if Viacom are eventually successful, YouTube is popularly used throughout the world. Thus, any decision in their favour will, pending some form of international agreement, be of limited effect.