Throughout the brief, YouTube frequently pointed to Viacom mistakenly identifying clips the company posted itself as infringing material.
“This case shows why Congress required particularized knowledge and put primary responsibility on copyright owners, not service providers, to seek out infringing activity,” the brief said.
“Not only is YouTube filled with non-infringing material of endless variety, but plaintiffs themselves complicated any infringement inquiry exponentially in the way they used YouTube to advance their business interests,” it continued.
Viacom sued YouTube in 2007, seeking more than $1 billion in damages for hosting 62,637 infringing clips.
The US District Court for the Southern District of New York ruled in favour of YouTube last year. The court held that YouTube met the requirements for protection under the safe harbor provision of the Digital Millennium Copyright Act (DMCA).
In his decision, Judge Louis Stanton said that “mere knowledge” of prevalence of infringing activity on a service provider’s site was not enough to preclude DMCA protection.
Viacom filed an appeal in December. The case will be heard by the Court of Appeals for the Second Circuit.
In its brief, the video sharing site said it removed materials with “red flags” once notified of specific infringement.
“Lacking particularized knowledge of the alleged infringements, YouTube was obligated to remove plaintiffs’ clips-in-suit only in response to DMCA notices, and it is undisputed that YouTube did so,” the brief said.
Further, YouTube argued the DMCA does not require YouTube to review “hundreds of millions of clips” to identify which is unauthorised or infringing.
“Both as a legal and a practical matter, the methods plaintiffs say were available to YouTube to forestall the alleged infringing activity (keyword searching, community flagging, Audible Magic fingerprinting) cannot give a service provider ‘control’ within the meaning of the statute,” the brief said.
“That is underscored by plaintiffs’ recurring difficulties, even in this litigation, in distinguishing authorized from unauthorized postings for their own material on YouTube.”
Viacom, by using Grokster in making inducement claims against YouTube, seeks “to dilute the Supreme Court’s strict standard for inducement liability and ignore the undisputed evidence that YouTube is not the kind of pirate service – one that takes active steps with the purpose of encouraging infringement – described in Grokster,” the brief said.
The National Venture Capital Association, eBay and Anaheim Ballet are among the 13 amicus briefs in support of YouTube. Eleven, including ones from BMI and Microsoft, have been filed in support of Viacom.
