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A federal district court in the Second Circuit held that YouTube is entitled to the DMCA 512(c) safe harbor because it had insufficient notice of the particular infringements. The issue before the court was whether a website operator is ineligible for the DMCA safe harbor if it is generally aware that there is infringing content on its site (as the plaintiff copyright holders argued) or if it is ineligible only if it has actual knowledge of specific and identifiable infringements of individual items. The court granted summary judgment for the defendants, holding that the DMCA requires more than mere knowledge of infringement in general.
This decision is a major set-back for copyright holders who must file DMCA take-down notices for their copyrighted content that has been posted to sites like YouTube without authorization. On the other hand, the decision may provide some comfort for website operators that host user-provided content as long as they comply with all of the requirements of the DMCA.
DMCA Safe Harbor
Section 512(c) of the DMCA (17 U.S.C. § 512(c)) provides that a service provider (as defined in the Copyright Act) is not liable for claims of copyright infringement relating to content provided by users as long as it does not have "actual knowledge that the material or an activity using the material on the system or network is infringing" and "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent." (A service provider must also comply with several DMCA requirements, such as registering a designated agent to receive take-down requests, in order to qualify for the safe harbor.)
The plaintiffs (Viacom International, Comedy Partners, Country Music Television, Paramount Pictures and Black Entertainment Television) claimed that "tens of thousands of videos on YouTube, resulting in hundreds of millions of views, were taken unlawfully from Viacom's copyrighted works without authorization" and that "Defendants had 'actual knowledge' and were 'aware of facts or circumstances from which infringing activity [was] apparent,' but failed to do anything about it."
However, the court pointed out that YouTube designated an agent, and when it received specific notice that a particular item infringed a copyright, it swiftly removed it.
Relying on legislative history of the DMCA and case law, the court explained that "[t]o let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users' postings infringe a copyright would contravene the structure and operation of the DMCA." The court also quoted language from a Ninth Circuit decision, Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) that said "The DMCA notification procedures place the burden of policing copyright infringement - identifying the potentially infringing material and adequately documenting infringement - squarely on the owners of the copyright. We decline to shift a substantial burden from the copyright owner to the provider."
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