In Viacom International Inc.'s $1 billion copyright suit
against Google Inc., and its YouTube platform, the Court of Appeals
for the Second Circuit Thursday vacated the district court's
grant of summary judgment in favor of Google, in which it held that
Google was entitled to protection from liability from all of
Viacom's claims under the safe harbor protection of the Digital
Millennium Copyright Act (DMCA). The Second Circuit found that
while the district court correctly held that §512(c), the safe
harbor provision applicable to online service providers, requires
knowledge or awareness of specific infringing activity before an
online service provider is disqualified from protection, summary
judgment on the issue was premature, because evidence existed from
which a reasonable jury could conclude that YouTube had actual
knowledge or awareness of specific infringing activity on its
The district court had ruled that, under the DMCA, mere
knowledge of the prevalence of a general practice of posting
infringing material was not enough to impose liability on YouTube.
The appeals court agreed, but found that, based on the evidence,
including a 2006 internal YouTube report advising that clips of
popular television shows (including Viacom shows) were available on
YouTube at the time, that this content was "blatantly
illegal" and that YouTube should consider preemptively
removing it, "a reasonable juror could conclude that YouTube
had actual knowledge of specific infringing activity, or was at
least aware of facts or circumstances from which specific
infringing activity was apparent." What was needed, according
to the court, was a determination as to whether YouTube had actual
knowledge of specific infringing activity related to the
copyrighted clips at issue in the litigation needed. The second
circuit remanded the case for further fact finding on this
On an issue of first impression, the Second Circuit also held
that the common-law concept of "willful blindness" may be
applied, in appropriate circumstances, to demonstrate knowledge or
awareness of specific instances of infringement under the DMCA, and
directed the district court on remand to consider whether the
defendants made a "deliberate effort to avoid guilty
In granting summary judgment, the district court also found that
item-specific knowledge of infringing activity is required for a
service provider to have the "right and ability to
control" infringing activity, and therefore to be disqualified
from the safe harbor protections. The court of appeals disagreed,
finding the lower court's interpretation of the "right and
ability to control" erroneous. Rather, the court reasoned that
while the provision requires more than just the ability to remove
or block access to materials posted on the service provider's
website, exerting substantial influence on the activities of users,
without necessarily - or even frequently - acquiring knowledge of
specific infringing activity - would be sufficient, and remanded to
the district court to consider whether Viacom adduced sufficient
evidence to allow a reasonable jury to conclude that YouTube had
the right and ability to control the infringing activity and
received a financial benefit directly attributable to that
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