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Safe Harbor to Harbor a Little Less Safety?

About a week ago the Second Circuit issued a decision in YouTube v Viacom that has copyright lawyers all up in arms, which may not be all that difficult a feat in itself. The decision overturned a grant of summary judgement on behalf of YouTube in a copyright infringement case that spans all the way back to 2007. (Yes, this is how slowly IP law moves). I must first say that there are some excellent postings and rumination on this case. One of my favs is the Copyhype blog which goes in to far more detail than I.

Why should you care about this? Well, it’s pretty important if you’re a website operator who posts user generated content, or allows users to post their own content a la YouTube. In the late 90’s, Congress created the Digital Millennium Copyright Act (DMCA), which among other things granted these sorts of website operators a “safe harbor” wherein could avoid liability in the event a user posted content that infringed the copyrights of another, a situation certain to happen. The DMCA says that as long as the website operator follows a few simple statutory rules and does not have knowledge of the infringement, then they can’t be held liable for the infringement. It’s this last component — knowledge — that is key to the court’s determination.

In the original case, the District Court held that knowledge could not be merely “general awareness that there is infringement”. Instead, the court held that the level of knowledge needed to remove the DMCA’s protections would have to rise to a  level “actual or constructive knowledge of specific and identifiable infringements.” Recognizably, this is a pretty high threshold and is realistically only met via notice to a website owner from a copyright holder since the operator itself has no duty to police or monitor its content. As long as they don’t know that specific content is infringing, then they’re all clear (as far as notice goes, remembering, however, that there are other requisites to the DMCA safe harbor).

The YouTube case is interesting because, while YouTube did not have this sort of specific notice from a copyright holder prior to its notification from Viacom and other plaintiffs, emails were introduced at trial showing that employees suspected that certain videos were infringing, and most importantly, that these emails referred to specific and particular videos and clips. Viacom argued that this sort of internal email amounted to knowledge since the emails clearly indicated an awareness, not only of the specific video’s presence but also of the fact that the videos were infringing. Consequently, Viacom argues, YouTube had actual knowledge of the infringement and should not be granted DMCA safe harbor. Though the District Court didn’t buy this interpretation, the Second Circuit did, stating that this sort of internal communication may rise to the requisite level of knowledge if the evidence shows, and so reversed the District Court’s grant of summary judgement on the particular issue.

Do you see the big deal now? Internal emails identifying specific acts of infringement may now possibly remove DMCA safe harbor protection, whereas before they would not have. The DMCA has always clearly stated that there is no active duty on the part of the website operator to monitor the legality of the content posted. However, depending on how this case progresses, there could now be a duty to preemptively take down known infringing material even before the copyright holder notifies the operator. Actually, this probably stays more true to the intent of the law.

Lastly, the Second Circuit noted the concept of “willful blindness” which has long been accepted in the common law to be a type of knowledge. Though the concept is generally adopted in copyright law, its application to the DMCA had not yet been considered (i.e., whether acts constituting willful blindness indicate actual knowledge) Again, whether YouTube’s actions amounted to this are unknown at this point. The important thing to note is that the Circuit court has stated that willful blindness may play a part in the determination of a website provider’s knowledge. In itself, this is a new development.

No doubt this case will continue to develop all sorts of interesting law. Rest assured, when something new develops, the entire copyright world will buzz.

Categories: Copyright & the DMCA