Professional Documents
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ABSTRACT
In 2005, three former PayPal employees founded YouTube in San
Mateo, California. By 2007, the media conglomerate Viacom sued the now
Google-owned YouTube for direct and secondary liability. The United
States District Court for the Southern District of New York granted
summary judgment in YouTubes favor for lack of specific knowledge
under the DMCAs 512(c) safe harbor. The Court of Appeals for the
Second Circuit took the case and clarified the knowledge requirement for
eligibility under the 512(c) safe harbor before remanding most of the
factual determinations. Despite Congresss intent to clarify online
copyright law, ambiguities within the DMCA have led to judicial
interpretation. This Comment argues that Viacom correctly differentiates
the knowledge standards for 512(c)(1)(A) and 512(c)(1)(B). Viacom
should be welcomed as part of the natural evolution of online copyright
law; and its clarifications provide greater certainty for copyright owners
and service providers. Part I of this Comment examines Title II of the
DMCA, relevant Congressional Reports that led to its enactment, and case
law leading to the decision. Part II outlines Viacoms holding. Part III.A
demonstrates that Viacom correctly clarified 512(c)(1)(A) by defining itemspecific knowledge as the requisite knowledge standard. Part III.B asserts
that the court was correct in expressly incorporating willful blindness into
512(c)(1)(A)(ii). Part IV establishes that Viacom correctly held that
512(c)(1)(B) does not include a specific knowledge requirement and the
Second Circuits support for a substantial influence standard provides
greater certainty for providers and copyright owners.
Juris Doctor, cum laude, New England Law | Boston (2014). B.A., Political Science, cum
laude, Kent State University (2011). I would like to thank everyone on the New England Law
Review for their amazing contributions to this article and the advancement of the entire
publication. I would also like to thank my family and friends who, intentionally or
unintentionally, have greatly influenced my every decision.
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INTRODUCTION
n Viacom Intl v. YouTube, Inc., the Court of Appeals for the Second
Circuit clarified the knowledge requirement for eligibility under Title II
of the Digital Millennium Copyright Acts (DMCA) 512(c) safe
harbor.1 According to Congress, the DMCA safe harbors are designed to
provide protection for online service providers whose operations
potentially expose them to widespread copyright infringement liability
thereby ensuring online expansion of content variety and continued
improvement of the quality and efficiency of services.2 Despite Congresss
intent to clarify online copyright law, ambiguities within the DMCA have
led to varying judicial interpretation.3 Before the Second Circuits decision
in Viacom, courts typically articulated the same knowledge requirement
standards for qualification under 512(c)(1)(A) and 512(c)(1)(B)specific
knowledge of an actual copyright infringement. 4 The Second Circuit
explicitly differentiated the knowledge standards for each of these sections,
ruling that while item-specific knowledge is required for 512(c)(1)(A),
512(c)(1)(B) does not require the same specific knowledge. 5 Instead, the
Second Circuit held that the standard more closely resembled a service
provider exerting substantial influence on the activities of users, without
necessarilyor even frequentlyacquiring knowledge of specific
infringing activity.6
This Comment argues that Viacom correctly differentiates the
knowledge standards for 512(c)(1)(A) and 512(c)(1)(B) after considering
the language of the statute, interpreting Congresss intent, and looking at
case law. This Comment asserts that the decision in Viacom should be
welcomed as part of the natural evolution of online copyright law that
Congress anticipated would transpire after the DMCAs enactment.
Furthermore, this Comment urges that the Second Circuits clarifications
provide greater certainty for copyright owners and service providers
regarding copyright infringement online.
Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 25 (2d Cir. 2012).
S. REP. NO. 105-190, at 18 (1998).
3 See Edward Lee, Decoding the DMCA Safe Harbors, 32 COLUM. J.L. & ARTS 233, 23740
(2009) (noting how the DMCAs ambiguities produced a considerable amount of litigation
among the circuit courts).
2
4 See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1038, 1041
42 (9th Cir. 2011), superseded on rehg by UMG Recordings, Inc. v. Shelter Capital Partners LLC,
718 F.3d 1006 (9th Cir. 2013); Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627,
64344 (S.D.N.Y. 2011).
5
6
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Part I examines Title II of the DMCA , the relevant House and Senate
Reports that led to its enactment, and case law leading up to Viacom. Part II
outlines Viacoms holding. Part III.A demonstrates that Viacom correctly
clarified 512(c)(1)(A) by defining item-specific knowledge as the requisite
standard and expressly distinguishing 512(c)(1)(A)(ii)s red flag test
awareness. Part III.B asserts that the court was correct in expressly
incorporating the common law doctrine of willful blindness into
512(c)(1)(A)(ii). Part IV establishes that Viacom correctly held that
512(c)(1)(B) does not include a specific knowledge requirement and the
Second Circuits support for a substantial influence standard provides
greater certainty for both providers and copyright owners.
I.
7 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2860918 (1998)
(codified as amended at 17 U.S.C. 101 (2012)).
8 Lee, supra note 3, at 233.
9 Id.
10 Id.
11 Id.; see also Liliana Chang, The Red Flag Test for Apparent Knowledge Under the DMCA
512(c) Safe Harbor, 28 CARDOZO ARTS & ENT. L.J. 195, 196 (2010) (These safe harbors protect
eligible service providers from monetary liability that may arise due to third party copyright
infringement, leaving copyright holders with limited injunctive relief.).
12 17 U.S.C. 512(c) (2012).
13 See Lee, supra note 3, at 233; see generally 512(a)(d) (enumerating the four safe harbor
copyright provisions).
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14
512(k)(1)(B).
Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 27 (2d Cir. 2012).
16 512(c)(1).
17 512(c)(1)(A)(i)(iii).
18 512(c)(1)(B).
19 512(c)(1)(C).
20 See 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 12B.04[A][3]
(2013).
21 Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 2728 (2d Cir. 2012).
22 See 1 ALEXANDER LINDEY & MICHAEL LANDAU, LINDEY ON ENTERTAINMENT, PUBLISHING
AND THE ARTS 1:50.50 (3d ed. 2013) (discussing development of the DMCA and relevant case
law); Lee, supra note 3, at 23334, 240 (This case law is still evolving.).
15
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copyright infringement, Congress left the current law in its evolving state
and created safe harbors.23 The House and Senate Reports are almost
identical and echo the same message.24 The purpose of the DMCA is to
facilitate the robust development and world-wide expansion of electronic
commerce, communications, research, development, and education in the
digital age.25 Specifically, Congress intended Title II of the DMCA to
provide certainty for copyright owners and Internet service providers
with respect to copyright infringement liability online.26 Furthermore,
Title II was created to foster a safe environment for service providers who,
if not protected, may be hesitant to invest in the growth of the Internet,
causing an inadvertent decline in online expansion. 27 Lastly, the Senate
intended Title II to preserve strong incentives for service providers and
copyright owners to cooperate to detect and deal with copyright
infringements.28
C. Judicial Interpretation
1.
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32
35 See Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 644 (S.D.N.Y. 2011)
([I]f investigation is required to determine whether material is infringing, then those facts
and circumstances are not red flags[.]); see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,
1114 (9th Cir. 2007).
36
United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (quoting United States v.
Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)).
37 See Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 34 (2d Cir. 2012) (considering the
application of the common law willful blindness doctrine in the DMCA context as an issue of
first impression).
38 See, e.g., Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008)
([A]pparent knowledge requires evidence that a service provider turned a blind eye to red
flags of obvious infringement. (quoting H.R. REP. NO. 105-551, pt. 2, at 57 (1998))).
39 See generally Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2860
918 (codified as amended at 17 U.S.C. 512 (2012)).
40
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41 Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004); see also
4 NIMMER & NIMMER, supra note 20, 12B.04[A][1] ([The question is] whether the service
provider deliberately proceeded in the face of blatant factors of which it was aware.).
42
David Ludwig, Shooting the Messenger: ISP Liability for Contributory Copyright
Infringement, B.C. INTELL. PROP. & TECH. F., Nov. 7, 2006, at 1, 67, available at bciptf.org/wpcontent/uploads/2011/07/26-SHOOTING-THE-MESSENGER.pdf.
43
17 U.S.C. 512(c)(1)(A)(i)(iii).
512(c)(1)(B).
45 Id.; see also 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][a][b] (discussing
differences in recent decisions involving 512(c)(1)(B)).
46 See Greg Jansen, Note, Whose Burden Is it Anyway? Addressing the Needs of Content Owners
in the DMCA Safe Harbors, 62 FED. COMM. L.J. 153, 157 (2010) (Courts find vicarious liability
when the defendant (a) receives a direct financial benefit from infringement and (b) has the
right and ability to control that infringement.).
44
47
Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1151 (N.D. Cal. 2008); see Lee,
supra note 3, at 235 (stating that viewing 512(c)(1)(B) as imposing vicarious liability exposes
providers to potentially limitless liability).
48
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51 See Io Grp., Inc., 586 F. Supp. 2d at 1152 (focusing on whether the provider could control
what content users choose to upload); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp.
2d 1146, 118182 (C.D. Cal. 2002) (holding that a provider that prescreens sites, gives
customers extensive advice, and prohibits the proliferation of identical sites, exercises the
necessary control for disqualification).
52
58
59
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2014).
60
Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 28 (2d Cir. 2012).
Id.
62 Id.
63 Id.
64 Id. at 29.
65 Id.
66 Viacom, 676 F.3d at 29.
67 Id.; see also William Henslee, Copyright Infringement Pushin: Google, YouTube, and Viacom
Fight for Supremacy in the Neighborhood that May be Controlled by the DMCAs Safe Harbor
Provision, 51 IDEA 607, 62526 (2011) (quoting email exchanges between the three founders
that referenced copyrighted material getting out of hand on the site, and rather than cleaning
up the site in response to identification, the founders opposed the removal of illegal videos
because of their importance in maintaining high site traffic).
61
68
Viacom Intl, Inc. v. YouTube, Inc. (Viacom I), 718 F. Supp. 2d 514, 519 (S.D.N.Y. 2010).
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69
73
74
75
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evidence that YouTube executives knew that some of the content was
blatantly illegal.78 Because YouTube executives had referred to the
material as blatantly illegal, a reasonable juror could have concluded that
YouTube knew the located clips were infringing and subsequently failed to
remove the content expeditiously, therefore exposing the company to
potential liability.79
2.
The Viacom Court further ruled that the district court erred in granting
summary judgment to YouTube because the company was potentially
willfully blind to specific infringing activity. 80 Viacom was the first case in
which the willful blindness doctrine is expressly applied in the DMCA
context.81 After holding that the DMCA does not abrogate willful
blindness, the court held that a copyright owner could cite willful
blindness to prove knowledge or awareness of specific instances of
infringement.82 The Second Circuit emphasized that the doctrine does not
attempt to impose an additional duty on the provider. 83 Willful blindness
only stops a provider from purposefully avoiding knowledge of specific
instances of infringement.84 On remand, the district court must determine
whether YouTube made a deliberate effort to avoid guilty knowledge.85
B. Rejection of the Specific Knowledge Requirement and Support of
Substantial Control Applied to 512(c)(1)(B)
After determining that 512(c)(1)(A) requires item-specific knowledge,
the court analyzed whether 512(c)(1)(B) requires the same. 86 Unlike its
predecessor, and contrary to the Ninth Circuits recent case, UMG, which
adopted a specific knowledge requirement,87 the Second Circuit
determined that the knowledge requirement for 512(c)(1)(B) was not the
Id. at 33.
Id.
80 Viacom, 676 F.3d at 32, 34.
81 1 LINDEY & LANDAU, supra note 22, 1:50.50, at 1-356.951-356.96.
82 Viacom, 676 F.3d at 35.
83 Id.
84 Schecter, supra note 72, at 17.
85 Viacom, 676 F.3d at 35 (quoting In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir.
2003)).
79
86
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88
Viacom, 676 F.3d at 36; Schecter, supra note 72, at 17, 23.
Viacom, 676 F.3d at 38.
90 Id. at 37.
91 Id.
92 Id. at 38 (quoting Capitol Records, Inc., v. MP3tunes, LLC, 821 F. Supp. 2d 627, 645
(S.D.N.Y. 2011)); see also Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1151 (N.D.
Cal. 2008).
89
93 See Schecter, supra note 72, at 17 (asserting that the court failed to answer the more
difficult question of what something more is).
94 See Viacom, 676 F.3d at 38.
95 Id.
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ANALYSIS
III. The Court Correctly Applied the Specific Knowledge Requirement
and the Willful Blindness Doctrine to 512(c)(1)(A) After Analyzing
the Language of the DMCA, Congresss Intent, and Case Law
A. The Specific Knowledge Requirement
After looking to the DMCAs language and relevant congressional
reports, it is apparent that the safe harbors threshold knowledge
requirement should strictly apply to providers that knowinglyand
wrongfullyallow copyright infringement to happen. 96 One may view this
as Congress taking sides, opting for a requirement that favors the
providers.97 But Congresss explicit protection of providers is appropriate
because copyrightable material is both easily disseminated and accessed
online today.98
Congresss intent to apply a heightened knowledge standard should be
considered more than just a win for providers.99 This standard surely
boosts providers confidence, as Congress intended, creating greater
predictability for investors, which facilitates the expansion of technologies
and overall online growth.100 The individual listening to his or her favorite
artist on Sound Cloud and the artist or copyright owner developing an
online audience should both appreciate Congresss decision to require
actual knowledge of infringement.101 A different knowledge standard
would likely find providers excessively liable.102 Furthermore, Congress
explicitly designed the safe harbors to protect providers involved in
activity that under normal copyright law would be actionable against
them.103
96 See S. REP. NO. 105-190, pt. 5, at 4556 (1998); H. R. REP. NO. 105-551, pt. 2, at 57 (1998);
Chang, supra note 11, at 199201.
97
Kevin C. Hormann, Comment, The Death of the DMCA? How Viacom v. YouTube May
Define the Future of Digital Content, 46 HOUS. L. REV. 1345, 1369 (2009).
98 S. REP. NO. 105-190, pt. 3, at 8 (Due to the ease with which digital works can be copied
and distributed worldwide virtually instantaneously . . . .).
99 But see Hormann, supra note 97, at 1348 ([T]he DMCA safe harbor provisions has [sic]
shown a clear pattern of deference to the online service providers.).
100
S. REP. NO. 105-190, pt. 2, at 2; see Jansen, supra note 46, at 15456.
See Chang, supra note 11, at 196; Cf. Eugene C. Kim, Note, YouTube: Testing the Safe
Harbors of Digital Copyright Law, 17 S. CAL. INTERDISC. L.J. 139, 140 (2007) (explaining the five
major capabilities of YouTube, revolving around individuals sharing with others).
102 See Mark A. Lemley, Rationalizing Internet Safe Harbors, 6 J. TELECOMM. & HIGH TECH. L.
101, 10102 (2007).
101
103
See id.
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104
106
110
113
See Stephen A. Hess, Minesweeping the Digital Millennium Copyright Act Safe Harbors,
COLO. LAW., Oct. 2004, at 95, 98 (stating that a provider can claim protection if it removes
infringing material expeditiously).
114
See 512(c)(1)(C)(iii).
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115
See id.
512(c)(1)(A)(i)(iii).
117 Most of the struggle occurs when a provider on its ownwithout notification of
infringementdiscovers infringing material or facts that make it obvious that infringing
material is present. See 4 NIMMER & NIMMER, supra note 20, 12B.04[A][1]; Lee, supra note 3, at
251.
116
118
121
125
126
Viacom, 676 F.3d at 31; see S. REP. NO. 105-190, pt. 5, at 4849.
See 17 U.S.C. 512(c)(1)(A)(ii) (2012).
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independently of each other, the copyright owner can argue that the
service provider knew of a specific instance of infringement or that the
provider should have been aware of specific infringement. 127 Past case law
struggled to articulate this differentiation.128 Congress intended the
evolution of copyright law to continue after the DMCAs enactment and its
purpose was to facilitate these changes. 129 Viacom advances online
copyright law only after taking into consideration Congresss intentions.130
Although the DMCA and 512 will continue to take shape after Viacom,
establishing a more accessible standard for the red flag test was necessary
to achieve the DMCAs purpose.131
In identifying the type of activity that could disqualify a provider
under the 512(c)(1)(A)(ii) red flag test, the court identified some of
YouTubes potentially culpable actions.132 Under Viacom, the court stated
that the following could lead to disqualification under 512(c)(1)(A)(ii):
email requests identifying specific instances of infringement; a 2006 report
indicating an awareness of clips perceived to be blatantly illegal; and emails between executives asking about removing infringing material from
the website.133 This analysis provides greater clarity to awareness under
512(c)(1)(A)(ii).134 Additionally, there is still no duty for a provider to
search out the material, but if the provider becomes aware of an actual
infringement, the material is wrongfully on its site and the provider must
remove it expeditiouslyas if a copyright owner had actually informed it
of the specific infringement. 135 This aligns with the dual subjective and
objective standard Congress formulated and is similar to precedent that
127
129
135
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136 See Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)
(stating that the question under 512(c)(1)(A)(ii) is whether a service provider deliberately
proceeded in the face or turned a blind eye to red flags of blatant factors of obvious
infringement); S. REP. NO. 105-190, pt. 5, at 44 (1998).
137
140
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146
148
150
S. REP. NO. 105-190, pt. 3, at 8 (1998) ([C]opyright owners will hesitate to make their
works readily available on the Internet without reasonable assurance that they will be
protected against massive piracy.).
151
152
153
154
155
156
See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007).
Cf. Chang, supra note 11, at 221.
Cf. id.
Cf. id. at 22122.
See id.; Viacom I, 718 F. Supp. 2d 514, 52325 (S.D.N.Y. 2010).
See S. REP. NO. 105-190, pt. 3, at 1920 (1998); Chang, supra note 11, at 221.
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IV. The Second Circuit Was Correct in Rejecting the Specific Knowledge
Requirement and Applying Substantial Control to 512(c)(1)(B)
Because it Brings Needed Clarity to the 512(c) Safe Harbor
A. The 512(c)(1)(B) Substantial Control Standard Brings Greater
Clarity to 512(c) Because it Provides Greater Certainty for
Copyright Owners and Service Providers
The Second Circuits decision to adopt a different standard for
512(c)(1)(B)one that does not necessarily concern a providers
knowledge of specific instances of infringementbrings further clarity to
the 512(c) safe harbor.157 Before the Second Circuits decision, the right
and ability to control analysis could mistakenly be intertwined with the
specific knowledge requirement of 512(c)(1)(A).158 This led to a diluted
analysis under 512(c)(1)(B).159 Instead of focusing on whether the
provider exercised the right and ability to control infringing activity, the
courts focused on whether requisite knowledge of specific infringement
existed.160 Viacom eliminates this distraction by removing the specific
knowledge requirement from the 512(c)(1)(B) analysis.161 With specific
knowledge restricted to 512(c)(1)(A), courts can focus on whether a
provider offered a service directly tied to infringing activity that resulted in
monetary gain.162 The proper test the Second Circuit articulated turns on
whether the provider exercised substantial control over the service or
activity, not whether the provider knew of any specific instances of
infringement.163 Section 512(c)(1)(A) already excludes providers that are
aware of specific instances of infringementwhether or not they are
157
161
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164
Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 3135 (2d Cir. 2012).
When a provider is thought to need knowledge of a specific instance of infringement
under 512(c)(1)(B) it renders the statute superfluous because no provider is excluded from
512(c)(1)(B) that is not already disqualified under 512(c)(1)(A). See, e.g., UMG Recordings,
Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011), superseded on rehg by
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).
165
166 Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077, 1098 (C.D. Cal. 2004) (citing Costar
Grp., Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001)).
167
See Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1109 (W.D. Wash. 2004).
See S. REP. NO. 105-190, pt. 5, at 4445 (1998); 4 NIMMER & NIMMER, supra note 20,
12B.04[A][2][b].
169 S. REP. NO. 105-190, pt. 5, at 4445.
170 Id. at 44; 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][b].
171 See S. REP. NO. 105-190, pt. 5, at 45 (It would however, include any such fees where the
value of service lies in providing access to infringing material.).
168
172
173
174
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CONCLUSION
It is hard to believe that at the time of the DMCAs creation, legislators
could have imagined the importance of the Internet today. Similarly, it is
hard to imagine that when YouTube launched, its creators anticipated a
billion-dollar Google buyout or lengthy legal battles with media giants like
Viacom. Copyright owners, on the other hand, have always attempted to
protect their work from emerging types of infringement. The courts
provide the battleground for providers and copyright owners. Congress
intended the DMCA and 512(c) to be a starting pointnot
comprehensive. The Second Circuits decision in Viacom better balances
protection of artistic endeavors and the progress of innovation, creating a
fairer playing field. Navigating the ambiguity of 512(c), the court
correctly addressed 512(c)(1)(A) by continuing to require specific
knowledge of actual infringement, clarifying the 512(c)(1)(A)(ii) red flag
tests objective knowledge standard, and expressly incorporating the
willful blindness doctrine. With these clarifications, and by remanding the
issue of YouTubes knowledge culpability to the district court, the Second
Circuit ensures that a provider cannot claim safe harbor when avoiding
obvious infringement. Furthermore, in eliminating the specific knowledge
requirement from 512(c)(1)(B), and instead focusing on the providers
ability to substantially control user activity, the court further clarified the
boundaries of the safe harbor and the providers role in allowing access to
material and copyright owners ability to assert infringement.
175 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][c] (stating that it is necessary to look
beyond formal indicia of control to all relevant aspects of the relationship).
176 Brett White, Viacom v. YouTube: A Proving Ground for DMCA Safe Harbors Against
Secondary Liability, 24 ST. JOHNS J. LEGAL COMMENT. 811, 817 (2010) (Although no element of
knowledge is required to find vicarious liability, some courts imply that this knowledge is
imputed to an infringer that exerts control over and profits from the direct infringement.)
(emphasis added).