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Second Circuit Suggests “Willful Blindness” May Trigger Liability under the DMCA

The Digital Millennium Copyright Act (DMCA) is a major player U.S. copyright law that has come to the forefront when, on appeal, the Second Circuit remanded the case Viacom International, Inc. v. YouTube, Inc., for further review of certain copyright issues.  One of the major aspect of the DMCA are the safe harbor provisions that limit copyright infringement liability of web hosts who are posting user generated content.

In 2007, Viacom sued YouTube alleging that the site had uploaded material owned and copyrighted by Viacom.  They alleged that YouTube employees knew of users were posting infringing material and did not do anything to stop it.  The District Court for the Southern District of New York ruled in favor of Google (which owns YouTube), stating that web hosts are under no duty to actively police their cites for infringing content.  In fact, there are provisions laid out in the DMCA, under the Online Copyright Infringement Liability Limitation Act (OCILLA), that address this issue – namely notice and takedown provisions when a web host is alerted of infringing content.  The Court held that it YouTube employees may have had general knowledge of infringing content, they did not know of specific content, and were therefore protected under the safe harbor provisions.

On appeal, the Second Circuit ruled that “although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, 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.”

This ruling seems to have little impact on the case at hand, because it deals with only a small amount of content that has actually been removed by YouTube years ago.  However, one practical implication is that typically, web hosts relied on the assumption that as long as they complied with the DMCA’s notice and takedown provisions, and did not significantly, willfully ignore infringing content, the Court would be hesitant to rule against them.  The Second Circuit, in issuing its decision, relied on emails sent by YouTube executives as evidence a jury might perceive as willful blindness to infringing content.  The practical takeaway is that any indication that that a web host might know of infringing content can be enough for a case to survive summary judgment and be taken to a jury.


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