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Viacom Int'l, Inc. v. YouTube, Inc. - 676 F.3d 19 (2d Cir. 2012)


17 U.S.C.S. § 512(m) is explicit. Digital Millennium Copyright Act (DMCA), 7 U.S.C.S. § 512, is incompatible with a broad common law duty to monitor or otherwise seek out infringing activity based on general awareness that infringement may be occurring. That fact does not, however, dispose of the abrogation inquiry; as previously noted, willful blindness cannot be defined as an affirmative duty to monitor. Because the statute does not speak directly to the willful blindness doctrine, § 512(m) limits—but does not abrogate—the doctrine. Accordingly, the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA. 


YouTube was founded in February 2005 by Chad Hurley ("Hurley"), Steve Chen ("Chen"), and Jawed Karim ("Karim"), three former employees of the internet company Paypal. When YouTube announced the "official launch" of the website in December 2005, a press release described YouTube as a "consumer media company" that "allows people to watch, upload, and share personal video clips at www.YouTube.com." The basic function of the YouTube website permits users to "upload" and view video clips free of charge. Before uploading a video to YouTube, a user must register and create an account with the website. The registration process requires the user to accept YouTube's Terms of Use agreement, which provides, inter alia, that the user will not submit copyrighted materials unless he was the owner of such rights or has been permitted by the owner to post the material on YouTube. On March 13, 2007, plaintiff Viacom International, Inc. an American media conglomerate, and various Viacom affiliates filed suit against YouTube on March 13, 2007, alleging direct and secondary copyright infringement based on the public performance, display, and reproduction of their audiovisual works on the YouTube website. Subsequently, on May 4, 2007, plaintiff Premier League, an English soccer league, and Plaintiff Bourne Co. filed a putative class action against YouTube alleging direct and secondary copyright infringement on behalf of all copyright owners whose material was copied, stored, displayed, or performed on YouTube without authorization. The plaintiffs in both actions principally demanded statutory damages pursuant to 17 U.S.C. § 504(c) or, in the alternative, actual damages plus the defendants' profits from the alleged infringement, as well as declaratory and injunctive relief. Furthermore, at the close of discovery, the parties in both actions cross-moved for partial summary judgment with respect to the applicability of the Digital Millennium Copyright Act (DMCA) safe harbor defense. In its June 23 opinion, the District Court denied the plaintiffs' motions and granted summary judgment to the defendant, finding that YouTube qualified for DMCA safe harbor protection with respect to all claims of direct and secondary copyright infringement. In construing the statutory safe harbor, the District Court held that the “actual knowledge or awareness of facts or circumstances” that would disqualify an online service provider from safe harbor protection under § 512(c)(1)(A) referred to knowledge of specific and identifiable infringements, that item-specific knowledge of infringing activity was required for a service provider to have the right and ability to control infringing activity under § 512(c)(1)(B) and that the replication, transmittal, and display of videos was “activity by reason of the storage at the direction of a user” within the meaning of § 512(c)(1). Following the June 23 Opinion, final judgment in favor of YouTube was entered on August 10, 2010. Thereafter, Viacom appealed.


Did the district court err in its decision to grant summary judgment in favor of YouTube?




The appellate court held that although the district court correctly held that 17 U.S.C. § 512(c)(1)(A) requires knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement, the district court’s decision to grant summary judgment in favor of YouTube should be vacated. According to the appellate court, a reasonable jury could conclude that YouTube had knowledge or awareness under § 512(c)(1)(A) at least with respect to a handful of specific clips. The appellate court further held that it was error to interpret the “right and ability to control infringing activity” to require item-specific knowledge. 

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