Last month, the Southern District Court of New York dismissed Viacom International’s complaint, finding that YouTube was not liable for copyright infringement of copyrighted videos appearing on YouTube.com. Viacom International, Inc. v. YouTube, Inc., Case No. 07-cv-02103-LLS (S.D. NY April 18, 2013) (available here). On remand from the Second Circuit Court of Appeals, the Southern District of New York heard YouTube’s renewed motion for summary judgment. Viacom had sued YouTube for copyright infringement based on clips found on YouTube’s website. The Second Circuit Court had determined that YouTube was protected from liability except in instances where YouTube had actual knowledge (or was willfully blind to) the posting of infringing material. On remand, the District Court considered (1) whether YouTube had knowledge or awareness of any specific infringements; (2) whether YouTube was willfully blinded regarding the infringement; (3) whether YouTube had the right and ability to control the infringing activity; and (4) whether any of the clips were syndicated to a third party, and if so, whether this syndication would allow YouTube to claim a safe harbor protection.
In regards to the first point, YouTube argued that it never received adequate notice of infringement of over 63,000 clips. Viacom conceded that both parties lacked specific evidence that would allow for a clip-by-clip analysis of whether YouTube had actual knowledge of the infringement. However, Viacom argued that the burden is on YouTube to establish its lack of notice because YouTube claimed protection under the statutory safe harbor. The District Court rejected this argument. The Digital Millennium Copyright Act (DMCA) provides a “safe harbor” protection for service providers of copyright infringement liability. The burden of notice to these service providers, like YouTube, is on the copyright owner (Viacom). 17 U.S.C. § 512 (c)(3)(A). “The system is entirely workable: ln 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day.” YouTube, Slip Op. P. 6. Viacom’s acknowledgment that they lack the requisite evidence to establish YouTube’s actual knowledge therefore disposed of the first point of contention.
As for willful blindness as to specific infringements, “a person is willfully blind or engages in conscious avoidance amounting to knowledge where the person was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” Viacom International Inc. v. YouTube Inc., 676 F.3d 19, 34-5 (2d Cir. 2012) (internal citations omitted). Willful blindness of specific and identifiable instances of infringement would disqualify YouTube from the DMCA’s safe harbor protection. However, Viacom only presented evidence of general infringement. “The specific locations of infringements are not supplied: at most, an area of search is identified, and YouTube is left to find the infringing clip.” YouTube, Slip Op. P. 9. YouTube does not have a duty to actively monitor and search for these infringing clips because under § 512(m) of the DMCA, “nothing in the applicable section of the DMCA shall be construed to require YouTube’s affirmatively seeking facts indicating infringing activity.” YouTube, Slip Op. 10. As a result, Viacom did not show that YouTube was willfully blind to specific acts of infringement.
Third, the District Court considered whether YouTube had the “right and ability to control” the infringing activity within the meaning of § 512 (c)(1)(B). The “right and ability to control” goes beyond the ability to remove/block access to material posted. “The concept is that a service provider, even without knowledge of specific infringing activity, may so influence or participate in that activity, while gaining a financial benefit from it, as to lose the safe harbor.” YouTube, Slip Op. P. 12. However, knowledge of infringement, and welcoming that infringement, is not enough to forfeit the safe harbor protections. Viacom argued that YouTube went the additional step because: (a) YouTube willingly permitted its services to be used for infringing purposes;(b) YouTube had the “ultimate editorial judgment and control” over its website; and (c) YouTube would remove full movies, but leave movie clips. “YouTube’ s decisions to restrict its monitoring efforts to certain groups of infringing clips. . . do not exclude it from the safe harbor, regardless of their motivation.” YouTube, Slip Op. P. 18. The only evidence supporting Viacom’s contentions was that YouTube employees regularly select clips to feature on its homepage, and two of these clips are clips-in-suit. However, one of the clips was made available to YouTube by its creator, and the second clip was featured on YouTube’s homepage at the request of the creator’s agent as a promotional tool. As such, YouTube did not have the right and ability to control the infringing activity.
Finally, the District Court considered whether any syndications of the clips-in-suit were made to third parties, and if so, whether these syndications would allow YouTube to claim protection under the safe harbor of § 512 (c). YouTube had delivered clips to Verizon Wireless, however none of these were clips-in-suit. There is no evidence of another instance in which YouTube manually selected videos, copied the videos, and delivered them to a third party for syndication. YouTube does have licensing agreements with several companies, such as Apple and Sony, but under these agreements YouTube provides access to its material at the direction of users by transcoding. YouTube does not manually select which materials the users watch. As a result, YouTube is protected under § 512 (c), which offers safe harbor protection to service providers when syndications occurred “by reason of the storage at the direction of the user.” 17 U.S. C. § 512(c)(1). The District Court granted YouTube’s motion for summary judgment, and dismissed Viacom’s complaint.