Judgement Briefs

Intellectual Property Rights

Viacom International, Inc. v. YouTube, Inc.

676 F.3d 19 (2d Cir. 2012)

Citation
676 F.3d 19 (2d Cir. 2012)
Court
U.S. Court of Appeals for the Second Circuit
Date
5 April 2012
Bench
Cabranes and Livingston, Circuit Judges

Facts

  • YouTube allowed users to upload and view videos.
  • Viacom and other copyright owners alleged that users had uploaded thousands of unauthorised clips from television programmes, films and music.
  • YouTube removed identified videos after receiving takedown notices.
  • The plaintiffs nevertheless argued that YouTube knew its service contained widespread infringement and benefited from it.
  • Internal communications showed that YouTube’s founders and employees were generally aware that substantial copyrighted content appeared on the platform.
  • YouTube relied upon the safe harbour in Section 512(c) of the Digital Millennium Copyright Act (“DMCA”).
  • The District Court granted summary judgment to YouTube, holding that general knowledge of infringement was insufficient.
  • Viacom appealed to the Second Circuit.

Issue

  • Whether general awareness of widespread infringement defeats DMCA safe-harbour protection.
  • What constitutes “actual knowledge” or awareness of facts making infringement apparent.
  • Whether willful blindness can be treated as knowledge.
  • What is required to show that a service provider had the “right and ability to control” infringing activity.

Rule

  • Section 512(c) protects qualifying online service providers storing content at users’ direction.
  • Safe harbour is unavailable where the provider has:
  • actual knowledge of specific infringement; or
  • awareness of facts or circumstances from which specific infringement is apparent.
  • General awareness that a service is used for infringement does not by itself defeat protection.
  • Knowledge must ordinarily concern particular and identifiable infringements.
  • A service provider may lose protection through willful blindness where it deliberately avoids confirming known specific facts.
  • “Right and ability to control” requires more than the basic technical ability to remove or block content.
  • It generally requires substantial influence over user activity.

Application

  • The Court agreed with YouTube that the DMCA does not require a platform to locate every infringement merely because it knows infringement occurs generally.
  • Congress created a notice-and-takedown structure under which copyright owners ordinarily identify particular material.
  • Requiring platforms to infer infringement from general awareness would undermine that structure.
  • However, the Court found that some internal emails referred to particular popular clips and programmes.
  • A jury could potentially conclude that YouTube knew of specific infringing videos but allowed them to remain available.
  • Therefore, the District Court had granted summary judgment too broadly without examining whether specific items were known.
  • The Court also held that willful blindness remained available as a knowledge doctrine.
  • A platform could not deliberately shield itself from particular infringements and then rely upon the absence of formal knowledge.
  • Regarding control, the ordinary ability to remove material was insufficient because every qualifying service provider necessarily has some removal capacity.
  • Greater involvement—such as directing, organising or substantially influencing particular user activity—would be required.
  • Automated functions such as transcoding and playback did not automatically remove YouTube from safe harbour because they were part of storing and making user-directed content accessible.
  • The Court therefore preserved the specific-knowledge standard but required further factual examination of particular videos and YouTube’s conduct.

Conclusion

  • The Second Circuit held that general knowledge of widespread infringement does not defeat DMCA safe harbour.
  • Actual and red-flag knowledge must ordinarily concern specific, identifiable infringing material.
  • Willful blindness may satisfy the knowledge requirement.
  • The judgment for YouTube was vacated in part and the case remanded to determine whether it knew of specific infringements.
  • Use this case for: online platforms retain safe harbour despite general awareness, but may be liable where they know of or deliberately avoid identifying specific infringing material.