Because this decision was well covered during my hiatus from blogging, I'll (try to) keep this brief.
In June 2010, the Southern District of New York granted summary judgment in favor of YouTube on all of Viacom's copyright claims, finding that YouTube was entitled to the protections of the Digital Millennium Copyright Act's ("DMCA") safe harbor provisions. (SDNY's decision here; my discussion of the decision here.)
On appeal, the Second Circuit:
- concluded that the SDNY correctly held that the safe harbor provision of Section 512(c)(1)(A) "requires knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement";
- concluded that the "willful blindness doctrine" may apply "in appropriate circumstances" to demonstrate the knowledge or awareness of specific instances of infringement required under Section 512(c)(1)(A);
- vacated the grant of summary judgment because a reasonable jury could conclude that YouTube had the requisite knowledge or awareness under Section 512(c)(1)(A) and remanded for the SDNY to determine that issue and to consider the application of the "willful blindness doctrine";
- concluded that the SDNY erred "by requiring 'item-specific' knowledge of infringement in its interpretation of the 'right and ability to control' infringing activity under 17 U.S.C. 512(c)(1)(B)," and reversed and remanded for further fact-finding on the issues of control and financial benefit;
- concluded that the SDNY "correctly held that three of the challenged YouTube software functions--replication, playback, and the related videos feature--occur 'by reason of the storage at the direction of a user' within the meaning of 17 U.S.C. 512(c)(1)," but remanded for further fact-finding regarding a fourth software function, specifically involving syndication of YouTube videos to third parties.
In case its directions for remand were not clear, the Second Circuit also specifically directed that the parties be allowed to brief specific issues "with a view to permitting renewed motions for summary judgment as soon as practicable," including:
- "Whether, on the current record, YouTube had knowledge or awareness of any specific infringements (including any clips-in-suit not expressly noted in this opinion);"
- "Whether, on the current record, YouTube willfully blinded itself to specific infringements;"
- "Whether YouTube had the 'right and ability to control' infringing activity within the meaning of [Section] 512(c)(1)(B); and"
- "Whether any clips-in-suit were syndicated to a third party and, if so, whether such syndication occurred 'by reason of the storage at the direction of the user' within the meaning of [Section] 512(c)(1), so that YouTube may claim the protection of the [Section] 512(c) safe harbor."
The case cite is Viacom Int'l, Inc. v. YouTube, Inc., Docket Nos. 10-3270-cv, 10-3342-cv (2d Cir. Apr. 5, 2012).
There was extensive coverage of the Second Circuit's decision but Eric Goldman's Technology & Law Blog provides an excellent discussion of the case as well as a number of links to case materials.