State of the DMCA Safe Harbor: As the 2nd Circuit Prepares to Take Another Look at Viacom v. YouTube
Three years ago, Judge Stanton of the Southern District of New York first granted summary judgment in favor of YouTube in what had become a long running dispute between media giant Viacom and Google. The court found that YouTube fell within the requirements of the Section 512 safe harbor provision, and as such was entitled to its protection. The court also held that “actual knowledge” as it is written in the §512(c)(1)(a) exception to safe harbor protection requires knowledge of a specific instance of infringement and not merely a general awareness that infringing may or is likely to happen. Viacom v. YouTube, 718 F. Supp. 2d 514, 523 (S.D.N.Y. 2010). On appeal, the 2nd Circuit upheld the district courts characterization of “actual knowledge” and said that such a reading meshed with Congress’s intent to have the safe harbor work to the benefit of OSP’s. The court also reversed the district court’s ruling regarding the “right and ability to control” provision of §512(c) and held that “item specific” knowledge was not required to lose the protection of this provision. More general control would suffice in the courts view as long as it met the standard of “something more” than the simple ability to control access to materials on the website possessed by all service providers.
In addition, the 2nd Circuit found that a willful blindness claim could potentially be made against YouTube and remanded to the District Court to have them fined whether such evidence of specific infringement could be put forth by Viacom and whether willful blindness was met. The court notably declined to iron out what the standard for finding willful blindness would be, which left the District Court in an especially strange situation given the intent that the 2nd Circuit had attributed to Congress that the Safe Harbor was to be interpreted in the OSP’s favor.
Earlier this year, Judge Stanton found for YouTube on remand and granted summary judgment to YouTube due to the protection it receives from the DMCA safe harbor. Viacom Int’l Inc. v. YouTube, Inc., 07 CIV. 2103 LLS, 2013 WL 1689071 (S.D.N.Y. Apr. 18, 2013) (Stanton). This time around, Viacom had put forth 4 major arguments that a genuine issue of fact sufficient to prevent Summary Judgment from being granted existed. They Argued that: 1) YouTube had specific knowledge of the infringing clips on the platform. 2) YouTube was willfully blind as to the existence of such clips. 3) YouTube had too much control to fall within the safe harbor, and 4) third party syndication of the clips was unlawful. The court found for YouTube on all four of these claims.
The most interesting aspect of the opinion was what Judge Stanton decided to do with Willful Blindness. The court stated that “under appropriate circumstances the imputed knowledge of the willfully-avoided fact may impose a duty to make further inquiries that a reasonable person would make—but that depends on the law governing the factual situation”. For this reason, the conclusion that “specific and identifiable cases of infringement” were neccasary would apply to willful blindness as well, effectively making it irrelevant in most instances. Such a conclusion fits with the imputed intent that Congress wants to offer extremely strong protection to OSP’s, but it is startling that neither the 2nd Circuit nor the S.D.N.Y. was willing to try and articulate a standard for how willful blindness should be applied in this instance.
It was a given that Viacom would appeal the decision, but it was unclear on what grounds this could be. It is likely that they will claim that the District Courts evidentiary determinations regarding whether “actual knowledge” had been established were erroneous, but this argument is not likely to hold much weight given the lackluster strength of their evidence regarding specific cases that Judge Stanton noted earlier this year. It seems that they could try and argue that the willful blindness standard the District Court applied is incorrect, but seeing as the 2nd Circuit never really articulated a standard at all it seems as if they may be a hurdle they might be more interested in jumping rather than diving back into that can of worms.
Assuming that YouTube wins conclusively in the 2nd Circuit once again (whenever it is they get there), this string of decisions will have articulated the clearest interpretation of the DMCA safe harbor and its purposes as analyzed by the judiciary thus far. OSP’s will be very happy indeed, hiding safely behind the shroud of a stringent “actual knowledge” standard that can also protect them from any issues of “willful blindness”. However, if the 2nd Circuit was correct about what Congress’s intent for the DMCA safe harbor was than it does not seem that this is such an egregious result. The practical consequences of the Viacom v. YouTube case seems to be that the burden of finding specific cases of infringement falls on the Copyright Owner and not the OSP. Considered in this fashion it makes perfect sense for this to have been the intent all along since requiring OSP’s to shoulder this burden as to any material on their platform would be a crushing burden that would likely destroy or severely minimize websites like YouTube and Facebook.
Scott Lipschitz is a J.D. candidate, ’15, at the NYU School of Law.