Because there was no evidence linking YouTube’s knowledge to specific clips, the Court reasoned there was no proof YouTube had actual or Red Flag knowledge, or was willfully blind to specific infringement. Rather than placing the burden on Google to prove it lacked the requisite knowledge, the Court instead determined that Viacom bore the burden to prove that Google had the requisite knowledge of infringement. On remand, the District Court ruled in Google’s favor again, rejecting Viacom’s argument that Google was not entitled to the safe harbor affirmative defense because neither party had sufficient evidence to make a clip-by-clip assessment of the knowledge possessed by YouTube. The Court noted that “the remaining and more difficult question” is just what “something more” is required, and remanded the matter.Īlthough the Second Circuit briefly revived Viacom’s lawsuit, its victory was short-lived. With regard to the “right and ability to control” exception to safe harbor protection, the Circuit Court concluded that the statute requires “something more” than the ability to remove or block access to materials posted on an ISP’s website. Thus, a factual question regarding whether YouTube made a “deliberate effort to avoid guilty knowledge” remained. Although Section 512(m) of the DMCA, states that an ISP is not required to monitor its service or affirmatively seek out infringing activity, the Second Circuit determined this merely limits the principle of willful blindness it does not abrogate it. Specifically, the Second Circuit held that “actual knowledge” is a subjective belief that infringing activity has occurred, while “Red Flag knowledge” is subjective awareness of facts and circumstances that objectively demonstrate that such activity has occurred. In making these determinations, the Second Circuit provided some guidance on the issues of actual and Red Flag knowledge, willful blindness, vicarious liability and the “right and ability to control” exclusion to the safe harbor provisions. The Second Circuit further found that the District Court erred by interpreting the “right and control” provision as requiring “item-specific” knowledge. The Second Circuit on appeal affirmed the lower court’s determination that the safe harbor requires knowledge or awareness of specific infringing activity (as opposed to general knowledge that infringement was prevalent) but remanded the issue because a reasonable juror could potentially find that YouTube had such specific knowledge. Ruling in Google’s favor in the first instance, the District Court held that Google was entitled to DMCA safe harbor protection because it had insufficient notice of the particular infringements that Viacom claimed were illegally published on YouTube. The specificity of the requisite knowledge that requires the ISP to take action, the applicability of common law principles of willful blindness and vicarious liability and the level of control required to remove an ISP from safe harbor protection are subjects of considerable debate. Additionally, if the ISP receives a financial benefit directly attributable to the infringing activity where it has the “right and ability to control” such activity or, upon notification of claimed infringement (in the form of a “takedown notice”) fails to expeditiously remove or disable access to the claimed infringing material, the safe harbor is no longer available.
Google maintained it was immune from liability under the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”), which essentially provides that Internet Service Providers (“ISPs”) are not liable for infringing activity unless they had actual knowledge or the awareness of facts or circumstances demonstrating infringing activity (often referred to as “Red Flag” Knowledge) and failed to remove or block access to the material. The claim was that over 60,000 clips of Viacom programs were available on YouTube without authorization and that YouTube was aware of instances of copyright infringement, but failed to take appropriate action to stop it. In 2007, Viacom filed suit against YouTube (now owned by Google) in federal court in the Southern District of New York for more than a billion dollars in damages.
However, as demonstrated by the recent settlement agreement between Mega-media giants Google and Viacom, achieving it can be very expensive.
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