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Viacom Int'l, Inc. v. YouTube

Court of Appeals for the Second Circuit
676 F.3d 19 (2012)
ELI5:

Rule of Law:

Under the Digital Millennium Copyright Act (DMCA), an online service provider is shielded from liability by the § 512(c) safe harbor unless it has actual knowledge of specific infringing activity or is aware of facts or circumstances that would make specific infringements objectively obvious (i.e., 'red flags'). A general awareness that infringing material exists on the provider's platform is insufficient to disqualify it from safe harbor protection.


Facts:

  • YouTube was founded in February 2005 as a platform for users to upload, watch, and share video clips.
  • To upload a video, a user had to accept YouTube's Terms of Use, which prohibited submitting copyrighted material without the owner's permission.
  • Once a video was uploaded by a user, YouTube's automated system would create copies, transcode the video into a standard format, and make it available for streaming to other users.
  • Between 2005 and 2008, approximately 79,000 video clips copyrighted by Viacom, The Football Association Premier League, and other plaintiffs were uploaded to YouTube by its users without authorization.
  • During this period, internal emails and reports from YouTube's founders and employees discussed the presence of specific copyrighted content on the site, including clips from TV shows like 'South Park' and 'The Daily Show', Bud Light commercials, and CNN news footage.
  • In one instance, a founder identified specific TV show clips as 'blatantly illegal' and suggested they be preemptively removed.
  • In another exchange, co-founders debated whether to remove a CNN clip of a space shuttle, with one suggesting they 'take the video down' after receiving a cease and desist letter '2 weeks later'.
  • Google acquired YouTube in a stock-for-stock transaction in November 2006.

Procedural Posture:

  • Viacom International, Inc. and other copyright holders sued YouTube, Inc. and Google Inc. in the U.S. District Court for the Southern District of New York for direct and secondary copyright infringement.
  • The plaintiffs sought statutory damages and injunctive relief for approximately 79,000 allegedly infringing video clips.
  • At the close of discovery, both parties cross-moved for partial summary judgment on the applicability of the DMCA safe harbor defense.
  • The District Court granted summary judgment in favor of YouTube, holding that it was entitled to DMCA safe harbor protection.
  • The District Court reasoned that the DMCA safe harbor requires knowledge of specific and identifiable infringements, which it found the plaintiffs had not demonstrated YouTube possessed.
  • Viacom and the other plaintiffs, as appellants, appealed the District Court's final judgment to the U.S. Court of Appeals for the Second Circuit.

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Issue:

Does the DMCA safe harbor at 17 U.S.C. § 512(c) require a service provider to have actual or 'red flag' knowledge of specific instances of infringement to be disqualified from its protection, rather than just a general awareness of infringing activity on its platform?


Opinions:

Majority - Cabranes, J.

Yes. The DMCA safe harbor requires a service provider to have actual or 'red flag' knowledge of specific instances of infringement to be disqualified from its protection, not merely a general awareness that infringing activity is occurring. The text of § 512(c)(1)(A), which requires a provider to expeditiously remove 'the material' upon gaining knowledge, implies knowledge of specific material to be removed. The court distinguished between the subjective standard of 'actual knowledge' and the objective standard of 'red flag' awareness, holding both apply only to specific infringements. While affirming this legal standard, the court vacated the summary judgment for YouTube, finding that a reasonable jury could conclude from internal emails that YouTube had actual knowledge or awareness of specific infringing clips. The court also held that the 'right and ability to control' infringing activity under § 512(c)(1)(B) requires 'something more than the ability to remove or block access to materials,' and clarified that the common law doctrine of 'willful blindness' can be used to prove knowledge under the DMCA.



Analysis:

This decision significantly clarified the knowledge standard for the DMCA § 512(c) safe harbor, establishing that a high bar of specific knowledge is required to hold service providers liable for user-uploaded content. By rejecting a generalized knowledge standard, the court provided crucial protection for platforms like YouTube, which are built on user-generated content and could not feasibly monitor every upload. However, by remanding the case for further consideration of YouTube's internal communications and allowing for a 'willful blindness' theory, the court signaled that providers cannot be deliberately ignorant of specific infringements. The ruling struck a balance, protecting innovation while leaving open avenues to hold service providers accountable when their knowledge of specific infringement is demonstrable.

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