What Did YouTube Know, And When Did It Know It

Viacom sued YouTube for copyright infringement of approximately 79,000 video clips posted to the popular DIY video site. In 2010, YouTube argued that it couldn’t be held responsible for infringing conduct by people posting clips to YouTube without the company’s knowledge. The district court agreed, ruling on summary judgment that YouTube was entitled to safe harbor protection for online service providers as to all clips on its site under the Digital Millennium Copyright Act, which requires knowledge or awareness of specific infringing activity.

Today, the Second Circuit Court of Appeals breathed some (but how much?) life back into the Viacom lawsuit. The appellate court concluded, first, that the district court was right that actual knowledge or awareness of facts or circumstances indicating identifiable instances of infringement will disqualify a service provider from the safe harbor of the DMCA. Second, the Court of Appeals concluded that the record created a disputed issue of material fact over whether YouTube had such knowledge with respect to certain identifiable clips. Third, the court held that the “right and ability to control” the infringing material requires more than simply the ability to remove or block access to posted materials, but less than item–specific knowledge, a determination to be made based on the factual determination of the trial court regarding the degree of control exerted by YouTube over certain postings and its financial benefit from them. The case now goes back to the district court for those factual determinations.

While the outcome of this particular dispute remains partially open, the ability of defendants to win on summary judgment under the DMCA may have suffered a blow in light of the fact–intensive nature of the analysis described by the appellate court as required at the trial level.

Posted by David Swetnam-Burland