By subarcticmike of Flickr

By Bryan Russell

On April 5th, 2012, United States Court of Appeals for the Second Circuit published its long-awaited review of the granted summary judgment motion in favor of YouTube against Viacom. The district court originally found YouTube immune to liability for the copyright infringement of its users under the safe-harbor provision for online service providers in §512 of the Digital Millennium Copyright Act (DMCA). Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 529 (S.D.N.Y. 2010) (“Defendants are granted summary judgment that they qualify for the protection of 17 U.S.C. § 512(c), as expounded above, against all of plaintiffs’ claims for direct and secondary copyright infringement. Plaintiffs’ motions for judgment are denied”). The Second Circuit affirmed in part, vacated in part, and remanded.
Concluding that the district court applied the correct standard of knowledge, the Second Circuit Court of Appeals clarified that this does not mean “item-specific” knowledge:

Although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. Viacom Int’l Inc. v. YouTube, Inc., Docket No. 10-3342-cv, at *2 (2nd Cir. 2012) (emphasis added).

The Court confirmed that “actual knowledge or awareness of specific infringing activity on its website” negates immunity under §512 of the DMCA, and further held that the “right and ability to control” provision does not require “item-specific” knowledge. Id. at *9. Under this standard, the Court then found “triable issue[s] of fact as to whether YouTube actually knew, or was aware of facts or circumstances that would indicate, the existence of particular instances of infringement.” Id. at *20.

Based on internal YouTube communications such as “the CNN space shuttle clip, I like. we can remove it once we’re bigger and better known, but for now that clip is fine,” the Court concluded that a reasonable jury could find in favor of Viacom. Id. at *21. The Court hesitated to do so itself because it was unclear from the record whether these internal communications referred to clips at issue in the case. Id. at *22. Then, the Court considered an “issue of first impression,” the role of willful blindness in regards to “specific infringing activity.” Id. at *22.

Within the context of willful blindness, the court considered whether an affirmative duty to monitor for infringing materials might exist for service providers such as YouTube. The Court held that “DMCA safe harbor protection cannot be conditioned on affirmative monitoring by a service provider.” Id. at *23. More specifically, “willful blindness cannot be defined as an affirmative duty to monitor.” Id. at *24. With these caveats the Court nonetheless held “that the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA,” noting that the statute did not abrogate the common law doctrine directly or entirely.  Id. at *24. While willful blindness cannot be said to create an affirmative duty to monitor for infringing content, it may ultimately prove to be a sufficiently strong incentive.

Viacom filed its complaint on March 13, 2007. Five years later, the role and limits of the DMCA §512’s safe harbor are without clear guidelines.