Should a website be responsible for all of the material that is uploaded by its users? Under what circumstances should a website be liable for direct and/or secondary copyright infringement?
These questions were addressed in Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 26-28 (2d Cir. 2012). That case involved a claim against YouTube (“Defendant”). As all of us know, it enables users to upload and view video clips free of charge. Before users are permitted to upload their videos they have to register. The registration process includes a “terms of use agreement” which states that the user “will not submit material that is copyrighted…unless [he is] the owner of such rights or ha[s] permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein.” Id. at 28.
This case arose when users nonetheless uploaded infringing material in derogation of the terms of use agreement. When YouTube was notified about the presence of infringing material, it took steps to remove it from the site. Nonetheless, Viacom and Premier League (“Plaintiffs”) filed suit against YouTube alleging direct and secondary copyright infringement.
The District Court denied Plaintiffs’ motion and granted summary judgment to Defendant. The District Court explained that YouTube qualified for Digital Millennium Copyright Act (“DMCA”) safe harbor protection with respect to all claims. The DMCA states that an Internet Service Provider (which includes a site, such as YouTube that hosts posts from unrelated third parties) is immune from suit when all it does is host the content without the requisite degree of knowledge that it is infringing. Once it has that degree of knowledge, it must remove the material under a procedure that provides both the poster and the aggrieved party to address the dispute.
Plaintiffs argued on appeal to the Second Circuit that general awareness of the presence of infringing material on Defendant’s site made them ineligible to receive safe harbor protection. Defendant argued that general awareness of infringement was not enough to remove internet service providers from the protection of the DMCA. Rather, specific and identifiable infringements of individual items were required.
Thus, the issue on appeal was whether “actual knowledge” under the DMCA safe harbor 17 U.S.C. § 512 requires a general awareness that there are infringements, or rather means actual or constructive knowledge of specific and identifiable infringements of individual items.
The DMCA’s Online Copyright Infringement Liability Limitation Act, establishes a series of four “safe harbors” that allow qualifying service providers to limit their liability for claims of copyright infringement based upon;

(a) “transitory digital network communications,”
(b) “system caching,”
(c) “information residing on systems or networks at [the] direction of users,” and
(d) “information location tools.”
17 U.S.C. § 512(a)-(d).

In its holding, the Second Circuit analyzed § 512(c)(1)(A) which states that the safe harbor will apply only if the service provider:

(i) does not have actual knowledge that the material or an activity using the    material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

The Court explained that § 512(c) requires knowledge or awareness of specific infringing activity. It focused on the fact that under § 512(c)(1)(A) knowledge or awareness alone does not disqualify the service provider. Rather, the provider that gains knowledge or awareness of infringing material activity retains safe harbor protection if, under § 512(c)(1)(A)(iii), it acts expeditiously to remove or disable access to the material. The Court concluded that the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material because “expeditious removal is possible only if the service provider knows with particularity which item to remove.” Id. at 30.
Ultimately, the Court held that YouTube was not liable for direct and/or secondary infringement. This is because “general awareness” was not enough to strip YouTube of its safe harbor protection. Additionally, the Court noted that YouTube took down infringing material in an expeditious manner when it did have “actual notice” of the presence of the infringing material.

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