YouTube is in hot water because it cannot stop a steamy sex video of Brazilian supermodel Daniela Cicarelli from being uploaded, even though the company is trying to prevent it.
A Brazilian judge ordered YouTube to remove the video of Cicarelli having sex with her banker boyfriend on a beach, and the video was taken down several months ago. In the interim, the video consistently has reappeared despite YouTube’s efforts to stop it.
Now, a Brazilian three-judge panel has been assembled to decide whether to award a contempt of court award of $119,000 a day for YouTube’s failure to comply.
Adult entertainment attorney JD Obenberger said any monetary fine is unlikely to hold up in an American court.
“[The video] keeps going up without actual fault by YouTube and despite what I surmise are good-faith efforts to comply with the order,” Obenberger said. “If that’s the situation, it is unlikely that appreciable fines would be imposed in the American system.”
Meanwhile, YouTube parent company Google has set aside almost $200 million dollars to fight any YouTube litigation.
“Its position—the reason behind the war chest—would seem to be its logical contention that it simply is a neutral, common carrier [that] should face no liability for permitting users to upload what they will, akin to a hosting company under the Digital Millennium Copyright Act, and with no liability until it is placed on notice of an improper or illegal post,” Obenberger said.
“When [YouTube] removes the post, I think it has discharged its obligation and it should face no liability. If the matter is posted again without YouTube’s actual knowledge, and should it again receive a notice of infringement, YouTube should respond appropriately by deleting the new post. Then, I think it should have no liability. As often as it gets posted, without YouTube’s actual knowledge, the objector should object, and YouTube should react.”
