On remand from the Second Circuit, which had partially reversed the district court’s summary judgment dismissing Viacom’s copyright infringement claims against YouTube, the district court has again dismissed all claims on DMCA safe harbor grounds.
After Judge Stanton first dismissed Viacom’s case, holding on summary judgment that YouTube was shielded by the DMCA safe harbor, the Second Circuit reversed and remanded for further briefing due to questions regarding, inter alia, whether the record evidence established (1) YouTube’s actual or “red flag” knowledge of specific infringing activity, (2) willful blindness to such activity, and (3) whether YouTube had the right and ability to control the infringing activity.
On remand, and after further briefing, Judge Stanton again granted summary judgment on all counts to YouTube.
With respect to YouTube’s knowledge of specific infringing activity, both parties agreed that there was no evidence in the record of such knowledge and that due to the volume of video content uploaded by users it would be impossible for YouTube to have evidence of its state of knowledge with respect to each of the specific video clips. Viacom argued, however, that (notwithstanding that it was the plaintiff) YouTube bore the burden of proving the negative — that it had no knowledge of specific infringements and that therefore the lack of evidence should be held against YouTube. The district court rejected this argument, stating that Viacom’s proposed requirement that an ISP monitor each and every item of user generated content in order to take advantage of the DMCA safe harbor was “anachronistic” and would turn the purpose and design of the safe harbor on its head by shifting the copyright owners’ policing burden onto the ISP.
Turning to willful blindness, the district court noted that in order to disqualify an ISP from the safe harbor Viacom needed to provide evidence of willful blindness to specific acts of infringement. The court held that Viacom had failed to meet this burden because none of its proffered willful blindness evidence indicated that YouTube knew the specific location of the infringing content at issue in the case.
Next, with respect to YouTube’s right and ability to control the infringing conduct, the court again held that Viacom had failed to meet its burden of proof. Viacom argued that, inter alia, YouTube’s removal of some, but not all, infringing content, its efforts to facilitate searches of the uploaded content, and its enforcement of its prohibition on pornographic content, demonstrated sufficient control over the infringing content to place YouTube outside the scope of the safe harbor, even without knowledge of specific infringing activity. Judge Stanton rejected this argument, holding that an ISP’s control must be more substantial, holding that “[t]here is no evidence that YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to the point where it might be said to have participated in their infringing activity.”
All in all, this decision is another resounding victory for YouTube but is certainly destined for another appeal.
Here is the decision: