In a decision with important implications for both content owners and online service providers concerning the availability of safe harbor protection under the Digital Millennium Copyright Act (17 U.S.C. § 512), the US Court of Appeals for the Second Circuit vacated in part, reversed in part, remanded in part, and affirmed in part the summary judgment order of the US District Court for the Southern District of New York issued in favor of the defendant YouTube, Inc. in the case Viacom Int’l, Inc., Football Ass’n Premier League Ltd. v. YouTube, Inc., (No. 07 Civ. 2103, 2010 WL 2532404 (S.D.N.Y. 2010)).

In its April 5, 2012 decision, the Court of Appeals held that:

1. The District Court correctly held that to lose the DMCA safe harbor immunity of 17 U.S.C. § 512(c)(1)(A), an Internet Service Provider must have knowledge or awareness of specific and identifiable instances of infringement;
   
   
2. The District Court’s order granting summary judgment to YouTube was vacated and remanded for the District Court to re-evaluate whether YouTube had knowledge or awareness of any specific instances of infringement corresponding to the clips-in-suit and whether those clips remained on YouTube’s service after such knowledge because, according to the Court of Appeals, “a reasonable jury could conclude that YouTube had knowledge or awareness under § 512(c)(1)(A) at least with respect to a handful of specific clips";
   
   
3. A more limited version of the common-law “willful blindness” doctrine may be applied, in appropriate circumstances, to demonstrate knowledge of awareness of specific instances of infringement under § 512(c)(1)(A) and, therefore, the case was remanded for the District Court to consider the application of the willful blindness doctrine in the first instance;
   
   
4. The District Court 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 that, therefore, the District Court’s judgment insofar as it rests on that erroneous construction was reversed and remanded for further fact-finding on the issues of control and financial benefit; and
   
   
5. The District Court’s judgment was affirmed insofar as it correctly held that three of the challenged YouTube software functions – replication, playback and the related video feature – occur “by reason of the storage at the direction of the user” within the meaning of 17 U.S.C. § 512(c)(1), and remanded for further fact-finding regarding a fourth software function involving the syndication of YouTube videos to third parties.
   
   

To find out more about how this decision may impact you as a content owner or an online service provider, contact the attorneys listed above.