April 06, 2012

DMCA Does Not Provide Safe Harbor from Copyright Infringement in All Cases

The United States Court of Appeals for the 2nd circuit recently overturned a district court decision in Viacom International Inc. et al v. YouTube Inc et al, No. 10-3270, and a companion case of The Football Association Premier League Ltd et al v. YouTube Inc, No. 10-3342.  While the Digital Millennium Copyright Act (DMCA) typically provides a safe harbor from copyright infringement liability for websites which post third party content such as YouTube, the 2nd circuit found that there was a potential jury issue as to whether or not YouTube fell outside the safe harbor provisions of the Digital Millennium Copyright Act.  Instances where a website host or owner loses its DMCA immunity include:

  1. When the website operator has actual knowledge of specific copyright infringement;
  2. Where the website operator has “red flag” awareness of specific instances of copyright infringement;
  3. When the website operator demonstrates “willful blindness” in allowing copyrighted videos or other content to remain on its website.

You can read more about the lawsuit here and the court’s full ruling is embedded below. 



Copyright infringement cases are always challenging even for an experienced copyright infringement attorney. The Digital millennium copyright act is a relatively new Internet law with relatively few court cases interpreting the DMCA. Every client should understand that there is always risk when you step into court. A judge can actually change the law or misinterpret the law taking what appears to be a solid copyright infringement case and turning into something different. You should work closely with your copyright law attorney to understand the potential risks and rewards of any infringement threat letter or lawsuit.

Key quotes from case.


Circuit Judge
: This appeal requires us to clarify the contours of the “safe harbor” provision of the DigitalMillennium Copyright Act (DMCA) that limits the liability of online service providers for copyright infringement that occurs “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c).

District Court held that the defendants were entitled to DMCA safe harbor protection primarily because they had insufficient notice of the particular infringements in suit.
Viacom Int’l, Inc. v. YouTube, Inc.
, 718 F. Supp. 2d 514, 529(S.D.N.Y. 2010)

Weconclude that the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, but we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.

"We further hold that the District Court erredby interpreting the “right and ability to control” infringing activity to require “item-specific”knowledge."

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