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Voluntary Action
it timely responded to takedown notices from copyright holders. 14 YouTube also argued that the
burden of policing copyright infringement rested with the copyright holder, and YouTube had no
duty to search for infringing material on its site. 15
In June 2010, the court granted summary judgment in favor of YouTube and found that it qualified
for protection under the DMCA safe harbor provisions as long as it continued to remove infringing
material upon notification. 16
Viacom appealed to the Second Circuit, 17 which vacated the district court’s summary judgment
decision, concluding that a jury could have found that YouTube had actual knowledge of the
infringing content, although additional fact finding on this issue was required. 18 The Second
Circuit also concluded that the “District Court erred by interpreting the ‘right and ability to
control’ provision to require ‘item specific’ knowledge.” 19 It also found that three of the four
software functions that YouTube performs fall within the DMCA safe harbor, but that further fact
finding was required on the fourth function. 20
In reaching this decision, the Second Circuit explained the distinction between “actual knowledge”
and “red flag knowledge,” 21 noting that Viacom’s arguments conflated the two, and held that
“actual knowledge or awareness of facts or circumstances that indicate specific and identifiable
instances of infringement will disqualify a service provider from the safe harbor.” 22 The court also
held that the common law doctrine of “willful blindness” may be applied “in appropriate circumstances,
to demonstrate knowledge or awareness of specific instances of infringement under
§512(c)(1)(A),” but remanded the case to the District Court for further fact-finding on this point. 23
Finally, the court also suggested that the safe harbor might not apply if a service provider were
found to have had the “right and ability to control access” to the infringing activity, which requires
“something more than the ability to remove or block access to materials posted on a service
provider’s website.” 24 The case was remanded to the district court for further fact-finding on this
point and on the question of whether YouTube had received a financial benefit directly attributable
to the infringing activity. 25 Therefore, while the Second Circuit’s decision more specifically
defined instances in which the DMCA’s safe harbor provision would not apply, it also affirmed that
general awareness of infringing activity was not sufficient to trigger liability for website operators.
On remand, the district court considered additional factual submissions provided by the parties
about: 1) whether YouTube had “knowledge or awareness of any specific infringements;” 2)
whether YouTube “willfully blinded itself to specific infringements;” 3) whether YouTube had the
“right and ability to control infringing activity” as required by the DMCA; and 4) whether any of
the clips-in-suit were syndicated to a third party. 26
The court rejected Viacom’s proffered argument that YouTube’s claims to the statutory safe harbor
under the DMCA as an affirmative defense shifted the burden of proof to YouTube to prove each
element of its defense, including that it lacked knowledge of the allegedly infringing content.
Instead, the court explained that the DMCA’s purpose was to require copyright owners to provide
specific notice to service providers, thus enabling the removal by the service provider of the
allegedly infringing content. 27 The DMCA specifically assigns the burden of discovery and
enforcement on the copyright owner. 28
Similarly, the court found that YouTube had not been willfully blind by failing to see the myriad
examples of infringing activity occurring on its site. 29 In order to be willfully blind, there must
have been specific examples of infringement that had been identified, about which the service
provider failed to act. 30 The court clarified further:
To find [allegedly infringing content using specific search terms, as Viacom suggested] would
require YouTube to locate and review over 450 clips [in this case]. The DMCA excuses YouTube
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