Second Circuit Addresses DMCA Safeharbor in Landmark Case

A new Second Circuit decision could change the way some service providers conduct business on the internet, imposing a greater burden to assess specific infringing activity.

In Viacom v. YouTube, Viacom sought $1 billion in damages for direct and secondary copyright infringement based on claims that its users improperly uploaded thousands of Viacom’s videos. The district previously held that YouTube was protected against claims of copyright infringement under the DMCA safe harbor primarily because it had insufficient notice of the particular infringement at issue. Essentially, it held that under the DMCA, service providers did not have a responsibility to identify which of its users’ postings infringed a copyright.

This week, the Second Circuit vacated that decision. While the Second Circuit agreed with the district court that the DMCA safe harbor requires knowledge or awareness of specific infringing activity, it vacated 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. It instructed the district court to determine on remand whether any specific infringements of which YouTube had knowledge or awareness correspond to the clips-in-suit in these actions. It also directed the lower court to consider whether YouTube made a “deliberate effort to avoid guilty knowledge” and whether YouTube had the ability to control the infringing activity and received a financial benefit attributable to that activity.

The decision can be viewed at

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