Yesterday, the Second Circuit issued an opinion clarifying
the contours of the Digital Millennium Copyright Act's (DMCA) safe harbor for online
service providers. 17 U.S.C. § 512(c) limits liability for copyright
infringement that occurs "by reason of the storage at the direction of a
user of material that resides on a system or network controlled or operated by
or for the service provider."
In June 2010, the district court held that YouTube was
entitled to DMCA safe harbor protection primarily because it had insufficient
notice of the particular infringements in suit. Viacom Int'l, Inc. v. YouTube, Inc.,
718 F. Supp. 2d 514 (S.D.N.Y. 2010) [enhanced version available to lexis.com subscribers].
The plaintiffs had alleged copyright infringement based on the public
performance, display, and reproduction of approximately 79,000 audiovisual
"clips" that had appeared on YouTube between 2005 and 2008.The district
court concluded that the "actual knowledge" or "aware[ness] of
facts or circumstances" that would disqualify an online service provider
from § 512(c)(1)(A) safe harbor protection referred to "knowledge of specific and
identifiable infringements." The district court further held 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).
On appeal, the judgment was affirmed in part, vacated in
part. In yesterday's ruling, Viacom Int'l v. YouTube, Inc., 2012 U.S.
App. LEXIS 6909 (2d Cir. N.Y. Apr. 5, 2012) [enhanced version available to lexis.com subscribers],
the Second Circuit held that the most important question on appeal was whether
the DMCA safe harbor required "actual knowledge" or
"aware[ness]" of facts or circumstances indicating "specific and
identifiable infringements." In answering this question, the court affirmed the district court's holding that § 512(c)(1)(A)'s safe harbor did
require knowledge or awareness of specific infringing activity.
However, the district court erred in prematurely granting
YouTube summary judgment. The court held that a reasonable jury could have
found that YouTube had actual knowledge or awareness of specific infringing
activity on its website. To show YouTube's knowledge or awareness, plaintiffs initially
underscored various estimates regarding the percentage of infringing content on
the YouTube website (e.g., website surveys estimated that 75-80% of all YouTube
streams contained copyrighted material). These estimates were insufficient,
standing alone, to create a triable issue 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. However, the court considered internal YouTube communications that referred to particular clips or
groups of clips. In light of these communications, a reasonable juror could have
concluded that YouTube had actual knowledge of specific infringing activity or
was at least aware of facts or circumstances from which specific infringing
activity was apparent.
Finally, the court addressed § 512(c)(1)(B)'s provision that
an eligible service provider must "not receive a financial benefit
directly attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such activity." The district
court held that "[t]he 'right and ability to control' the activity
requires knowledge of it, which must be item-specific." Contrary to the
district court's holding, the court refused to import a specific knowledge
requirement into the control and benefit provision. The court held that:
importing a specific knowledge
requirement into § 512(c)(1)(B) renders the control provision duplicative of §
512(c)(1)(A). Any service provider that has item-specific knowledge of
infringing activity and thereby obtains financial benefit would already be
excluded from the safe harbor under § 512(c)(1)(A) for having specific
knowledge of infringing material and failing to effect expeditious removal. No
additional service provider would be excluded by § 512(c)(1)(B) that was not
already excluded by § 512(c)(1)(A).
In construing § 512(c)(1)(A), the court favored a fact-based
inquiry and concluded that the "right and ability to control"
infringing activity required something more than the ability to remove or block
access to materials posted on a service provider's website. On remand, the district
court was ordered to determine whether there was sufficient evidence to allow a
reasonable jury to conclude that YouTube had the right and ability to control
the infringing activity and received a financial benefit directly attributable
to that activity.
can view briefs and motions filed in VIACOM
INT'L, INC. v. YOUTUBE, INC., Nos. 10-3270, 10-3342
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