Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (Second Circuit April 5, 2012). District court granted summary judgment holding that YouTube and Google were entitled to DMCA safe harbor protections for broadcasting 79,000 copyrighted videos from 2005 to 2009. District court held that absent item-specific knowledge of each video triggering a takedown duty, YouTube was entitled to the safe harbor. On appeal, Second Circuit upheld the standard, but remanded because a reasonable jury could conclude that YouTube had such knowledge. The Second Circuit also referred the question of potential “willful blindness” for further factfinding. The Second Circuit made clear that DMCA safe harbors, though, did not depend on monitoring systems being set up and that the DMCA does not create such an affirmative duty to monitor for potentially infringing content. The issue of whether YouTube had the right and ability to control infringing content was also remanded. In remanding, the Second Circuit noted that YouTube’s licensing of content to third parties presented “the closest case” for taking YouTube outside the provisions of the DMCA Safe Harbor, but that from the record it was not clear that any such allegedly infringed clips were involved in the third-party licensing transactions.
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