Détente can be a beautiful thing. However, as demonstrated by the recent settlement agreement between Mega-media giants Google and Viacom, achieving it can be very expensive.
In 2007, Viacom filed suit against YouTube (now owned by Google) in federal court in the Southern District of New York for more than a billion dollars in damages. The claim was that over 60,000 clips of Viacom programs were available on YouTube without authorization and that YouTube was aware of instances of copyright infringement, but failed to take appropriate action to stop it. Google maintained it was immune from liability under the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”), which essentially provides that Internet Service Providers (“ISPs”) are not liable for infringing activity unless they had actual knowledge or the awareness of facts or circumstances demonstrating infringing activity (often referred to as “Red Flag” Knowledge) and failed to remove or block access to the material. Additionally, if the ISP receives a financial benefit directly attributable to the infringing activity where it has the “right and ability to control” such activity or, upon notification of claimed infringement (in the form of a “takedown notice”) fails to expeditiously remove or disable access to the claimed infringing material, the safe harbor is no longer available.