Viacom Int’l, Inc. v. YouTube, Inc., No. 10-3270-cv, 2012 WL 1130851 (2d Cir. Apr. 5, 2012)

In Viacom Int’l, Inc., the Second Circuit clarified 17 U.S.C. § 512(c) of the Digital Millennium Copyright Act (the “DMCA”). The plaintiffs sued for direct and secondary copyright infringement arising out of the defendants’ display and reproduction of videos on YouTube. The district court granted summary judgment to defendants, holding that YouTube was immune from liability under § 512(c) of the DMCA. The Circuit agreed with the district court’s holding that to remove a party from the DMCA safe harbor, knowledge of “specific and identifiable instances” of infringement or willful blindness was required. However, the Second Circuit held that a reasonable jury could have found that YouTube had actual or red-flag knowledge of infringement at least with respect to some videos. The Second Circuit also determined that the district court “erred by interpreting the ‘right and ability to control’ provision [of § 512(c)] to require ‘item-specific’ knowledge” and vacated the district court’s grant of summary judgment. The Circuit remanded the case to the district court, directing the court to consider willful blindness and whether YouTube had enough knowledge to remove it from the DMCA safe harbor.

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• IP Case Summary: Second Circuit Examines DMCA safe harbor’s requirements of knowledge and right and ability to control.