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Second Circuit Ruling Leaves Open Possibility That YouTube Is Not Protected By Safe Harbor
By Jacob Rogers – Edited by Julie Dorais

Viacom Int’l, Inc., Football Ass’n Premier League Ltd. v. YouTube, Inc., Docket No. 10-3270-cv (2nd Cir. April 5, 2012)
Slip Opinion

The Second Circuit partially affirmed and partially reversed a decision by the U.S. District Court for the Southern District of New York, granting summary judgment to YouTube on all claims of direct and secondary copyright infringement brought by Viacom. The district court held that YouTube qualified for safe harbor under the Digital Millennium Copyright Act, 17 U.S.C. §512(c), which protects service providers from liability for acts of infringement by users.

The Second Circuit affirmed the district court’s holding that §512(c)(1)(A)’s exception to the safe harbor provision “requires knowledge or awareness of specific facts or circumstances that indicate specific and identifiable instances of infringement,” but it vacated the district court’s summary judgment order because certain internal emails within YouTube raised a genuine issue of material fact as to whether it had such knowledge. The court also held that the “right and ability to control” an infringer under §512(c)(1)(B), which also creates an exception to the safe harbor provision, does not require knowledge of specific acts of infringement but requires more than vicarious liability at common law. It additionally held that willful blindness may be relevant to determinations under §512(c)(1)(A), although it is limited by the congressional mandate that safe harbor for service providers not be conditioned on monitoring. See §512(m). The court accordingly remanded the case for the district court to apply this “right and ability to control test” and address the issue of willful blindness in the first instance.

The Technology and Marketing Blog provides an overview of the case, noting that, regardless of the specific decision of the district court on remand, this decision is likely to raise litigation costs for all digital content providers seeking safe harbor under the DMCA. The New York Times Media Decoder Blog suggests that the suit has no winners, as both sides expressed lukewarm sentiments at the result and Viacom is currently pursuing a business partnership with YouTube simultaneously with this litigation.

In its analysis of §512(c)(1)(A), the court focused heavily on statutory interpretation, attempting to ensure that no section of the DMCA was redundant or unnecessary. This focus on interpreting the statute so that every provision has distinct meaning allowed it to navigate through the §512(c)(1)(A) knowledge requirement by differentiating “knowledge” as a subjective test of the defendant’s state of mind and so-called “red flags” as objective tests relating to how a reasonable person would perceive the facts and circumstances known to the defendant. YouTube at 17.

However, the court applied the same focus on avoiding redundancy that it had earlier employed in §512(c)(1)(A) to disagree with the Ninth Circuit’s interpretation of the §512(c)(1)(B) “right and ability to control” test. The Ninth Circuit had reasoned logically that the “right and ability to control” a specific work required that the service provider have knowledge of that specific work. See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011). Rejecting the defendant’s proposal for a specific knowledge requirement and the plaintiff’s proposal to equate the “ability to control” with the common law doctrine of vicarious liability, the Second Circuit selected a middle option, stating that the ability to control does not require specific knowledge but does require “something more” than the common law requirement of the ability to block access. Id. at 27. It suggests that “exerting substantial influence on the activities of users” could be the proper test for a finding of control. Id. It further noted that “substantial influence” could be related to how closely the service provider controls the content of its users. Id. However, the Second Circuit did not make a final ruling on this issue but rather remanded to the district court to decide in the first instance whether a reasonable juror could conclude that YouTube exercised such control. The newly created circuit split will most likely lead to confusion over what conduct a defendant must refrain from in order to avoid a finding of control that would disqualify him or her from the DMCA safe harbor.

The vague nature of the language “exerting substantial influence,” combined with the creation of a new legal standard between knowledge and common law vicarious liability, leaves the state of safe harbor under §512(c)(1)(B) unclear.

Jacob Rogers is a 2L at Harvard Law School.

Posted On Apr - 10 - 2012 Comments Off

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