This post follows up on my post entitled YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit. Viacom and other plaintiffs who are content owners sued YouTube for copyright infringement. The district court granted YouTube’s motion for summary judgment, ruling that YouTube was protected by the DMCA §512(c) safe harbor. On appeal, the Second Circuit ruled in YouTube’s favor on some issues, but remanded the case to the district court to address four specific issues. On remand, the district court ruled in YouTube’s favor on all four of those issues, granted YouTube’s motion for summary judgment and dismissed the plaintiffs’ complaint.
1. Whether, on the current record, YouTube had knowledge or awareness of any specific infringements (including any clips-in-suit not expressly noted in this opinion).
Viacom admitted that neither side could assess YouTube’s knowledge on a clip-by-clip basis, but that it didn’t matter, because YouTube had the burden of proving which clips it knew about and that YouTube’s lack of evidence prevented it from claiming the §512(c) safe harbor. The district court disagreed.
The Act places the burden of notifying such service providers of infringements upon the copyright owner or his agent. It requires such notifications of claimed infringements to be in writing with specified contents and directs that deficient notifications shall not be considered in determining whether a service provider has actual or constructive knowledge.
(Opinion pdf page 5).
The volume of material prevented either side from determining instances of specific infringement. More than 1 billion videos are viewed on YouTube each day and more than 24 hours of new video are uploaded every minute.
If, as plaintiffs’ [sic] assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. The system is entirely workable: in 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube the next business day.
(Opinion pdf pages 5-6).
Viacom cannot shift to YouTube the burden of showing that YouTube knew or was aware of specific infringements of the works in suit.
2. Whether, on the current records, YouTube willfully blinded itself to specific infringements.
Willful blindness occurs when a person purposely avoids confirming a fact that could make that person liable for copyright infringement. Under §512(m), the service provider does not have an affirmative duty to monitor. The duty to monitor and willful blindness are two different things. The “red flags” that disqualify a service provider from DMCA safe harbor protection are specific and identifiable instances of infringement.
Viacom did not present evidence of the specific locations of infringing clips. The DMCA does not require YouTube to locate infringing clips when the specific locations are not supplied by the copyright owners. Viacom and the other plaintiffs did not show willful blindness by YouTube to specific infringements of clips-in-suit.
3. Whether YouTube had the “right and ability to control” infringing activity within the meaning of §512(c)(1)(B).
“Something more” than ordinary power by the provider over the content on its website is required for the “right and ability to control” under §512(c)(1)(B). An example of “something more” is when the service provider issues detailed instructions regarding layout, appearance, and content, institutes a monitoring program, forbids certain content and denies access to noncompliant users.
The concept is that a service provider, even without knowledge of specific infringing activity, may so influence or participate in that activity, while gaining a financial benefit from it, as to lose the safe harbor.
(Opinion pdf page 12).
But the governing principle must remain clear: knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or participate in the infringement.
Thus, where the service provider’s influence does not take the form of prescreening content, rendering extensive advice to users regarding content and editing user content, or where the service provider lists items for sale by users but is not actively involved in the listing, bidding, sale and delivery of any item, and does not preview the products prior to their listing, does not edit the product descriptions, does not suggest prices, or otherwise involve itself in the sale, its influence on users is not participation in their infringing activity, and does not amount to the required control beyond the normal ability of every service provider to decide what appears on its platform.
(Opinion pdf pages 13-14).
The plaintiffs argued that YouTube’s policies of monitoring some types of content, but not others, was the “something more” that prevented YouTube from benefitting from the safe harbor provisions.
The district court reiterated that §512(m) prevents safe harbor protection from being conditioned on monitoring or affirmatively looking for infringing activity, except for employing standard technical measures. Service providers who fail to employ standard technical measures lose safe harbor protection. The Second Circuit ruled on appeal that the plaintiffs did not argue that YouTube’s monitoring activities consisted of standard technical measures that removed safe harbor protection.
The district court ruled that
YouTube’s decisions to restrict its monitoring efforts to certain groups of infringing clips, like its decisions to restrict access to its proprietary search mechanisms, do not exclude it from the safe harbor, regardless of their motivation.
(Opinion pdf page 18).
YouTube’s activities did not take it beyond the normal functioning of any service provider and it did not have the right and ability to control infringing activity required by §512(c)(1)(B).
4. Whether any clips-in-suit were syndicated to a third party and, if so, whether such syndication occurred “by reason of the storage at the direction of the user” within the meaning of §512(c)(1), so that YouTube may claim the protection of the §512(c) safe harbor.
YouTube has licenses with Apple, Sony and others, (syndication agreements) to provide access to material on its system by third party mobile and similar technology. The syndication agreements allow users to watch videos uploaded to YouTube regardless of the hardware the user is using, e.g., tablet computers and Internet-enabled television sets. To be viewed on these other devices, the videos must be transcoded into the proper format. The transcoding does not involve manually selecting or manually delivering the videos. The syndication provides access to material stored at the direction of users. In addition, the video play back is in response to user request. YouTube’s activities pursuant to the syndication agreements are protected by the §512(c) safe harbor because they make user-stored videos more accessible from YouTube’s system to people using contemporary hardware.
The district court ruled in YouTube’s favor on each of the issues remanded from the Second Circuit. The district court therefore granted YouTube’s renewed motion for summary judgment, dismissed the plaintiff’s copyright infringement complaint and awarded YouTube its costs and disbursements.