Content platforms are under fire in Brazil. The Brazilian Superior Tribunal of Justice (“STJ”) recently found Google liable for copyright infringement for YouTube-hosted videos parodying a well-known commercial. The case raises concerns that copyright enforcement is interfering with freedom of expression and right of critique.
Dafra is a motorcycle manufacturer, which broadcasted a commercial titled “Meetings,” as part of a national advertising campaign known as "Dafra – You on Top.” “Meetings” starred Wagner Moura, a famous Brazilian actor. Shortly after launching of the advertising campaign in March 2009, a YouTube user published a dubbed version of the original Dafra’s video, called a “fan-dub”. Fan-dubs replace the original soundtrack of an audiovisual recording, with another that is designed to alter substantially the message conveyed by the original work. In the user-generated parody version of the Dafra’s commercial, the actor's original voice was replaced by a very similar one making statements tarnishing Dafra’s goodwill.
Google took down the initial video per Dafra's request, but several other versions of the video were posted constantly by other users under different titles. Therefore, Dafra and the advertising agency Loducca decided to sue Google for copyright infringement.
The plaintiffs claimed that Google had not adopted the necessary measures to avoid further viewing of videos with the same content, regardless of the title that users may have given to those videos. The plaintiff had asked Google not only to remove the video but also to use search blocking mechanisms to prevent posting on YouTube any unauthorized material related to the “Dafra – You on Top” campaign. Dafra and Loducca also requested that the videos that were taken down be substituted with a personalized warning message highlighting that defamation was a civil wrong subject to damages.
In response, Google claimed "technical impossibility", arguing that it was impossible to take down all videos because there are currently no blocking filters able to identify all infringing materials. Further, Google disputed that the 24 hour turn around time demanded by the plaintiffs for the removal of the videos was sufficient.
The STJ confirmed the previous appellate decision, which had already upheld plaintiffs’ claims for copyright infringement. The STJ ordered Google to remove all the adulterated advertisements within 24 hours, under a penalty of R$ 500 per day for noncompliance. Two dissenting opinions, endorsed the longer term of 72 hours proposed by Google. However, the majority of the Court noted that a period of 24 hours “is enough to boost the damage generated, considering the speed with which information circulates on the Internet and it does not seem reasonable to dilate it even more.”
According to the decision, Google must remove not only the infringing video which is the object of the lawsuit but also any similar and related unauthorized videos, even if they are uploaded by other users and bear a different title. However, the Court recognized "certain limitations of proactive control.” The judgment does not address future videos and Google’s obligation only reaches unauthorized videos with "Dafra – You on Top" in the title.
According to Justice Luis Felipe Solomon, the rapporteur of the case before the STJ, Google’s “technical impossibility defense” did not success because lack of a technical solution for fixing a defective new product does not exempt the manufacturer from liability, or from the obligation of providing a solution. In this respect, quite emphatically, Justice Solomon added that "if Google created an 'untamable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.”
Unanimously, the STJ rejected plaintiffs request that Google post a personalized warning in response to the infringing video. Justice Solomon said the request goes further than the individual interests involved in the case, and is unnecessary, as the law already warns people about the consequences of criminal and civil violations.
Justice Solomon stressed the importance of imposing liability on intermediaries, saying that “violations of privacy of individuals and companies, summary trials and public lynching of innocents are routinely reported, all practiced in the worldwide web with substantially increased damage because of the widespread nature of this medium of expression.” In the Dafra case, however, imposing liability on information service providers as a reaction to the “Internet threat” may dangerously trample freedom of expression. In the United States and other countries, these videos would not be defamatory, and would probably be fair use—in other words, lawful. Blocking filters as those that Google was forced to implement are imperfect. Proactive filtering could mistakenly remove lawful speech on the basis of keywords included in the title. The line between critique and defamation should be policed on a case by case basis by a court of law and never by a machine. Looking for the answer to the machine in the machine, the “monster” that Justice Salomon evoked may have been tamed but right of critique silenced as well.