The Second Circuit Serves up Some

Knowledge in Viacom v. YouTube

ROBERT J. WILLIAMS

ABSTRACT
In 2005, three former PayPal employees founded YouTube in San
Mateo, California. By 2007, the media conglomerate Viacom sued the now
Google-owned YouTube for direct and secondary liability. The United
States District Court for the Southern District of New York granted
summary judgment in YouTubes favor for lack of specific knowledge
under the DMCAs 512(c) safe harbor. The Court of Appeals for the
Second Circuit took the case and clarified the knowledge requirement for
eligibility under the 512(c) safe harbor before remanding most of the
factual determinations. Despite Congresss intent to clarify online
copyright law, ambiguities within the DMCA have led to judicial
interpretation. This Comment argues that Viacom correctly differentiates
the knowledge standards for 512(c)(1)(A) and 512(c)(1)(B). Viacom
should be welcomed as part of the natural evolution of online copyright
law; and its clarifications provide greater certainty for copyright owners
and service providers. Part I of this Comment examines Title II of the
DMCA, relevant Congressional Reports that led to its enactment, and case
law leading to the decision. Part II outlines Viacoms holding. Part III.A
demonstrates that Viacom correctly clarified 512(c)(1)(A) by defining itemspecific knowledge as the requisite knowledge standard. Part III.B asserts
that the court was correct in expressly incorporating willful blindness into
512(c)(1)(A)(ii). Part IV establishes that Viacom correctly held that
512(c)(1)(B) does not include a specific knowledge requirement and the
Second Circuits support for a substantial influence standard provides
greater certainty for providers and copyright owners.

Juris Doctor, cum laude, New England Law | Boston (2014). B.A., Political Science, cum
laude, Kent State University (2011). I would like to thank everyone on the New England Law
Review for their amazing contributions to this article and the advancement of the entire
publication. I would also like to thank my family and friends who, intentionally or
unintentionally, have greatly influenced my every decision.

657

658

New England Law Review

v. 48 | 657

INTRODUCTION

n Viacom Intl v. YouTube, Inc., the Court of Appeals for the Second
Circuit clarified the knowledge requirement for eligibility under Title II
of the Digital Millennium Copyright Acts (DMCA) 512(c) safe
harbor.1 According to Congress, the DMCA safe harbors are designed to
provide protection for online service providers whose operations
potentially expose them to widespread copyright infringement liability
thereby ensuring online expansion of content variety and continued
improvement of the quality and efficiency of services.2 Despite Congresss
intent to clarify online copyright law, ambiguities within the DMCA have
led to varying judicial interpretation.3 Before the Second Circuits decision
in Viacom, courts typically articulated the same knowledge requirement
standards for qualification under 512(c)(1)(A) and 512(c)(1)(B)specific
knowledge of an actual copyright infringement. 4 The Second Circuit
explicitly differentiated the knowledge standards for each of these sections,
ruling that while item-specific knowledge is required for 512(c)(1)(A),
512(c)(1)(B) does not require the same specific knowledge. 5 Instead, the
Second Circuit held that the standard more closely resembled a service
provider exerting substantial influence on the activities of users, without
necessarilyor even frequentlyacquiring knowledge of specific
infringing activity.6
This Comment argues that Viacom correctly differentiates the
knowledge standards for 512(c)(1)(A) and 512(c)(1)(B) after considering
the language of the statute, interpreting Congresss intent, and looking at
case law. This Comment asserts that the decision in Viacom should be
welcomed as part of the natural evolution of online copyright law that
Congress anticipated would transpire after the DMCAs enactment.
Furthermore, this Comment urges that the Second Circuits clarifications
provide greater certainty for copyright owners and service providers
regarding copyright infringement online.

Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 25 (2d Cir. 2012).
S. REP. NO. 105-190, at 18 (1998).
3 See Edward Lee, Decoding the DMCA Safe Harbors, 32 COLUM. J.L. & ARTS 233, 23740
(2009) (noting how the DMCAs ambiguities produced a considerable amount of litigation
among the circuit courts).
2

4 See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1038, 1041
42 (9th Cir. 2011), superseded on rehg by UMG Recordings, Inc. v. Shelter Capital Partners LLC,
718 F.3d 1006 (9th Cir. 2013); Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627,
64344 (S.D.N.Y. 2011).
5
6

Viacom, 676 F.3d at 38.

Id.

2014

Second Circuit Knowledge Requirement

659

Part I examines Title II of the DMCA , the relevant House and Senate
Reports that led to its enactment, and case law leading up to Viacom. Part II
outlines Viacoms holding. Part III.A demonstrates that Viacom correctly
clarified 512(c)(1)(A) by defining item-specific knowledge as the requisite
standard and expressly distinguishing 512(c)(1)(A)(ii)s red flag test
awareness. Part III.B asserts that the court was correct in expressly
incorporating the common law doctrine of willful blindness into
512(c)(1)(A)(ii). Part IV establishes that Viacom correctly held that
512(c)(1)(B) does not include a specific knowledge requirement and the
Second Circuits support for a substantial influence standard provides
greater certainty for both providers and copyright owners.
I.

Section 512(c): The Digital Millennium Copyright Act, Congressional

Reports, and the Judicial Interpretation
A. The Digital Millennium Copyright Act of 1998
1.

The DMCA, OCILLA, and 512

The Digital Millennium Copyright Act of 19987 is Congresss first

attempt to update copyright law in the digital age. 8 At the time of
enactment, Congress struggled to keep pace with the unimaginable
technological advancement that is the Internet, which allowed for the
copying and disseminating of works at speeds and over distances never
thought possible.9 The DMCA was Congresss response to this seemingly
impossible problem.10 Title II of the DMCA, the Online Copyright
Infringement Liability Limitation Act (OCILLA), contains four safe
harbors,11 including the relevant provision at issue,12 which protects
Internet service providers from monetary liability under standard
copyright law.13
To qualify for protection under any of OCILLAs safe harbors, a party
must first meet the threshold criteria including qualifying as a service

7 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2860918 (1998)
(codified as amended at 17 U.S.C. 101 (2012)).
8 Lee, supra note 3, at 233.
9 Id.
10 Id.
11 Id.; see also Liliana Chang, The Red Flag Test for Apparent Knowledge Under the DMCA
512(c) Safe Harbor, 28 CARDOZO ARTS & ENT. L.J. 195, 196 (2010) (These safe harbors protect
eligible service providers from monetary liability that may arise due to third party copyright
infringement, leaving copyright holders with limited injunctive relief.).
12 17 U.S.C. 512(c) (2012).
13 See Lee, supra note 3, at 233; see generally 512(a)(d) (enumerating the four safe harbor
copyright provisions).

660

New England Law Review

v. 48 | 657

provider, defined as a provider of online services or network access, or

the operator of facilities therefor.14 After meeting the threshold criteria, a
service provider must qualify under a specific safe harbor, which the
Viacom court designated as 512(c).15 Section 512(c) covers infringement
claims that arise when a user posts material onto a providers website.16
Subsection 512(c)(1)(A) requires that providers:
[N]ot have actual knowledge that the material or an activity
using the material on the system is infringing; [and] (ii) in the
absence of such actual knowledge, [the provider] is not aware of
facts or circumstances from which infringing activity is apparent;
or (iii) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material.17

Subsection (c)(1)(B) adds that a provider must not receive a financial

benefit directly attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such activity.18 Lastly,
subsection (c)(1)(C) holds that upon notice of infringement, a provider
responds expeditiously to remove, or disable access to, the material that is
claimed to be infringing or to be the subject of infringing activity.19
Subsection (c)(1)(C) allows service providers to escape liability in the event
they become aware of infringing activity, as long as they remove it in a
manner the court deems expeditious.20 Therefore, if a provider receives
actual knowledge of infringing material, awareness of facts or
circumstances that make infringing activity apparent, or receipt of a
takedown notice sent by a copyright owner, it must remove the infringing
material to maintain freedom from liability.21
B. The House and Senate Reports: Congressional Intent
There is no doubt that Internet copyright law is still young, with more
growing pains to come.22 Congress anticipated an evolution, and instead of
embarking on a wholesale clarification of service provider liability for

14

512(k)(1)(B).
Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 27 (2d Cir. 2012).
16 512(c)(1).
17 512(c)(1)(A)(i)(iii).
18 512(c)(1)(B).
19 512(c)(1)(C).
20 See 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 12B.04[A][3]
(2013).
21 Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 2728 (2d Cir. 2012).
22 See 1 ALEXANDER LINDEY & MICHAEL LANDAU, LINDEY ON ENTERTAINMENT, PUBLISHING
AND THE ARTS 1:50.50 (3d ed. 2013) (discussing development of the DMCA and relevant case
law); Lee, supra note 3, at 23334, 240 (This case law is still evolving.).
15

2014

Second Circuit Knowledge Requirement

661

copyright infringement, Congress left the current law in its evolving state
and created safe harbors.23 The House and Senate Reports are almost
identical and echo the same message.24 The purpose of the DMCA is to
facilitate the robust development and world-wide expansion of electronic
commerce, communications, research, development, and education in the
digital age.25 Specifically, Congress intended Title II of the DMCA to
provide certainty for copyright owners and Internet service providers
with respect to copyright infringement liability online.26 Furthermore,
Title II was created to foster a safe environment for service providers who,
if not protected, may be hesitant to invest in the growth of the Internet,
causing an inadvertent decline in online expansion. 27 Lastly, the Senate
intended Title II to preserve strong incentives for service providers and
copyright owners to cooperate to detect and deal with copyright
infringements.28
C. Judicial Interpretation
1.

Specific Knowledge Under 512(c)(1)(A)

Because 512(c) is still relatively new, only a limited amount of case

law discusses it or its knowledge requirements. 29 The DMCA itself is not a
model of clarity, but the general consensus among courts supports a high
standard of proof and knowledge of blatant or obvious infringement.30
Copyright holders consistently attempt to persuade the courts that the
awareness of facts or circumstances language in 512(c)(1)(A)(ii)also
known as the red flag test provisionrequires a different, lower
standard of knowledge based on the existence of other infringing activity
on a site.31
In UMG Recordings, Inc. v. Shelter Capital Partners LLC (UMG), a
recent major Ninth Circuit decision, Universal Music Group sued Veoh
Networks, a company with functions similar to YouTube, for direct and
23

S. REP. NO. 105-190, pt. 3, at 19 (1998).

Id. at 40 (The limitations in subsections (a) through (d) protect qualifying service
providers from liability for all monetary relief for direct, vicarious and contributory
infringement.); H.R. REP. NO. 105-551, pt. 2, at 50 (1998).
25 S. REP. NO. 105-190, pt. 2, at 12.
26 Id. at 2.
27 Id. at 8.
28 Id. at 20.
29 Lee, supra note 3, at 234.
30 Id. at 23435.
31 See Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 3132 (2d Cir. 2012) (stating
copyright holders mistake the difference between actual and red flag knowledge and that case
law supports this view).
24

662

New England Law Review

v. 48 | 657

secondary copyright infringement.32 UMG argued that Veohs general

knowledge of categories of copyrightable content on its site was sufficient
to demonstrate knowledge of infringement. 33
The Ninth Circuit disagreed, reasoning that copyright holders are
better suited to identify their own infringed materialunlike service
providers who may not readily be able to differentiate. 34 UMG exemplifies
the consensus among cases analyzing the knowledge standard under
512(c)(1)(A)(i) and (ii) that specific knowledge of particular infringing
activity is required and that providers have no duty to affirmatively seek
out facts indicating infringing activity.35
2.

The Willful Blindness Doctrine Applied to 512(c)(1)(A)(ii)

Willful blindness occurs when a party consciously avoids damaging

knowledgeor there is a high probability that the person was aware of a
fact in dispute and consciously avoided confirming that fact.36 Prior to
Viacom, courts interpreting 512(c) did not expressly apply willful
blindness.37 Instead, they implicitly used the doctrines principles to make a
512(c)(1)(A) specific knowledge determination. 38 Furthermore, the DMCA
does not mention willful blindness at all.39 However, Congress clearly
intended to limit protection under 512(c)(1)(A) to providers without
specific knowledge of infringement. 40 And the courts interpret this
congressional intent to include instances when a provider should have
known or purposely avoided learning of specific instances of

32

667 F.3d 1022, 1026 (9th Cir. 2011).

Id. at 1036.
34 Id. at 1037 ([A] [service] provider could not be expected, during the course of its brief
cataloguing visit to determine whether [a] photograph was still protected by copyright or was
in the public domain . . . (quoting H.R. REP. NO. 105-551, pt. 2, at 5758 (1998)).
33

35 See Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 644 (S.D.N.Y. 2011)
([I]f investigation is required to determine whether material is infringing, then those facts
and circumstances are not red flags[.]); see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,
1114 (9th Cir. 2007).
36

United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (quoting United States v.
Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)).
37 See Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 34 (2d Cir. 2012) (considering the
application of the common law willful blindness doctrine in the DMCA context as an issue of
first impression).
38 See, e.g., Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008)
([A]pparent knowledge requires evidence that a service provider turned a blind eye to red
flags of obvious infringement. (quoting H.R. REP. NO. 105-551, pt. 2, at 57 (1998))).
39 See generally Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2860
918 (codified as amended at 17 U.S.C. 512 (2012)).
40

H.R. REP. NO. 105-551, pt. 2, at 57 (1998).

2014

Second Circuit Knowledge Requirement

663

infringement.41 This type of knowledge is equated with implied

knowledge, a type of actual knowledge,42 satisfying 512(c)(1)(A)s
knowledge requirement and triggering provider disqualification from the
safe harborif not removed expeditiously under 512(c)(1)(A)(iii). 43
3.

The Right and Ability to Control Under 512(c)(1)(B)

In addition to 512(c)(1)(A), 512(c)(1)(B) disqualifies a provider that

receive[s] a financial benefit directly attributable to . . . infringing activity,
in a case in which the service provider has the right and ability to control
such activity.44 This requirement is denser than its seemingly simple onesentence construction and largely open to judicial interpretation.45
Copyright owners almost always argue that 512(c)(1)(B)s language is
closely related to vicarious liability.46 In actuality, courts are reluctant to
relate 512(c)(1)(B)s requirements with that of standard vicarious liability
because of its potentially devastating consequences to service providers.47
The courts require something more to be present to find against a
provider.48 In deciding whether a provider is disqualified, two separate
criteria must be met: the provider must (1) receive a financial benefit; and
(2) have the ability to control the activity connected to the monetary gain. 49
In addition to these two elements, courts apply the same culpability
standard for knowledge as 512(c)(1)(A).50

41 Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004); see also
4 NIMMER & NIMMER, supra note 20, 12B.04[A][1] ([The question is] whether the service
provider deliberately proceeded in the face of blatant factors of which it was aware.).
42

David Ludwig, Shooting the Messenger: ISP Liability for Contributory Copyright
Infringement, B.C. INTELL. PROP. & TECH. F., Nov. 7, 2006, at 1, 67, available at bciptf.org/wpcontent/uploads/2011/07/26-SHOOTING-THE-MESSENGER.pdf.
43

17 U.S.C. 512(c)(1)(A)(i)(iii).
512(c)(1)(B).
45 Id.; see also 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][a][b] (discussing
differences in recent decisions involving 512(c)(1)(B)).
46 See Greg Jansen, Note, Whose Burden Is it Anyway? Addressing the Needs of Content Owners
in the DMCA Safe Harbors, 62 FED. COMM. L.J. 153, 157 (2010) (Courts find vicarious liability
when the defendant (a) receives a direct financial benefit from infringement and (b) has the
right and ability to control that infringement.).
44

47

Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1151 (N.D. Cal. 2008); see Lee,
supra note 3, at 235 (stating that viewing 512(c)(1)(B) as imposing vicarious liability exposes
providers to potentially limitless liability).
48

Io Grp., Inc., 586 F. Supp. 2d at 1151.

17 U.S.C. 512(c)(1)(B) (2012); see also 4 NIMMER & NIMMER, supra note 20,
12B.04[A][2][a][b].
50 See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1174 (9th Cir. 2007).
49

664

New England Law Review

v. 48 | 657

Although the courts generally require specific knowledge of an

infringement to meet the ability to control element, actual knowledge has
little influence on the courts decisions beyond this initial determination.51
Instead, determining what exactly is necessary under 512(c)(1)(B) mostly
focuses on the third partys infringing activity and the providers resulting
financial benefit.52 For example, if costs for membership to a certain type of
site are usually $10 per set time period and a service that primarily
provides access to similar bootleg material charges $500 for the same
time period, then a court may find the providers financial benefit was
directly related to the infringing activity. 53 Section 512(m) expressly
provides that 512(c)s safe harbor cannot be conditioned on a service
provider monitoring its service or affirmatively seeking facts indicating
infringing activity.54 Congress intended for the courts to take a commonsense, fact-based approach in determining whether a service provider
received additional payment from its infringing users. 55
II. The Viacom Decision
In 2005, above a pizzeria and Japanese restaurant in San Mateo,
California, three former PayPal employees founded what would become
the media giant YouTube. 56 On February 14, 2005, the trio activated the
domain name YouTube.com, and by April 2006, the start-up already
experienced a surge in popularity and an injection of over $11 million in
capital.57 YouTube operates as a website where users can upload videos,
free of charge, and videos are then copied, formatted, and stored by
YouTubes computer systems for display by other users on the website.58
This allows users to easily upload various types of content as long as they
are formatted as a video.59 By November 2006, YouTube eclipsed its

51 See Io Grp., Inc., 586 F. Supp. 2d at 1152 (focusing on whether the provider could control
what content users choose to upload); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp.
2d 1146, 118182 (C.D. Cal. 2002) (holding that a provider that prescreens sites, gives
customers extensive advice, and prohibits the proliferation of identical sites, exercises the
necessary control for disqualification).
52

See Lee, supra note 3, at 24647.

4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][b].
54 512(m)(1).
55 H.R. REP. NO. 105-551, pt. 2, at 54 (1998).
56 See Sara Kehaulani Goo, Ready for its Close-Up, WASH. POST, Oct. 7, 2006, at D01, available
at 2006 WLNR 26031063; see generally Jefferson Graham, Video Websites Pop Up, Invite Postings,
USA TODAY, Nov. 22, 2005, at 03B, available at WLNR 18871741.
57 Franky Branckaute, The History of YouTube, THE BLOG HERALD (Nov. 2, 2010, 4:38 PM),
http://www.blogherald.com/2010/11/02/the-youtube-story/.
53

58
59

LINDEY & LANDAU, supra note 22, 1:50.50.

See About YouTube, YOUTUBE, http://www.youtube.com/yt/about/ (last visited July 4,

2014

Second Circuit Knowledge Requirement

665

competitors, including Google Video and Yahoo Video.60 This domination

landed the company a stock-for-stock buy-out by Google valued at over
$1.5 billion.61 By 2010, YouTube reached more than one billion daily video
views with more than 24 hours of new video uploaded every minute.62
In March 2007, the American media conglomerate Viacom and many
of its affiliates sued YouTube, alleging direct and secondary copyright
infringement based on public performance, display, and reproduction of
their audiovisual works on the YouTube website.63 Altogether, plaintiffs
asserted copyright infringement of over 70,000 video clips. 64 After
discovery, both parties cross-moved for partial summary judgment on the
applicability of the 512(c) DMCA safe harbor defense. 65
On June 23, 2010, the Southern District of New York denied the
plaintiffs motion and granted summary judgment to the defendants,
finding that YouTube qualified for the safe harbor. 66 Although the court
believed that a jury could find that the defendants not only were generally
aware of, but welcomed, copyright infringing material being placed on
their website, it reasoned that whenever YouTube received specific
notification from a copyright owner that a particular item infringed a
copyright it removed the item expeditiously.67 Central to the district
courts decision was the need for actual or constructive knowledge of
specific and identifiable infringements of individual items.68

2014).
60

Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 28 (2d Cir. 2012).
Id.
62 Id.
63 Id.
64 Id. at 29.
65 Id.
66 Viacom, 676 F.3d at 29.
67 Id.; see also William Henslee, Copyright Infringement Pushin: Google, YouTube, and Viacom
Fight for Supremacy in the Neighborhood that May be Controlled by the DMCAs Safe Harbor
Provision, 51 IDEA 607, 62526 (2011) (quoting email exchanges between the three founders
that referenced copyrighted material getting out of hand on the site, and rather than cleaning
up the site in response to identification, the founders opposed the removal of illegal videos
because of their importance in maintaining high site traffic).
61

68

Viacom Intl, Inc. v. YouTube, Inc. (Viacom I), 718 F. Supp. 2d 514, 519 (S.D.N.Y. 2010).

666

New England Law Review

v. 48 | 657

A. The Specific Knowledge Standard Applied to 512(c)(1)(A) and

Application of the Willful Blindness Doctrine
1.

The Specific Knowledge Standard Applied to

512(c)(1)(A)

The Second Circuit believed the most important question on appeal

was whether 512(c)(1)(A) required item-specific knowledge.69 However,
after analyzing this admittedly important matter, the court largely left the
specificity requirement (at least under 512(c)(1)(A)) unchanged. 70 In its
evaluation, the Second Circuit examined the difference between
512(c)(1)(A)(i)s actual knowledge of infringement and knowledge of
facts or circumstances that make infringement apparent under
512(c)(1)(A)(ii)s red flag test.71 More importantly, the court provided
clarity in rejecting Viacoms argument that generalized awareness of
infringing activity is sufficient to eliminate a provider from the safe harbor
because of 512(c)(1)(A)(ii)s language.72
In Viacom, the distinction between 512(c)(1)(A)(i) actual knowledge
and 512(c)(1)(A)(ii) red flag knowledge is a subjective and objective
standard respectively.73 For a provider to have actual knowledge it must
know of a specific instance of infringement. 74 But a provider may have red
flag knowledge (equaling the necessary actual knowledge) of an
infringement if the provider is aware of facts that would have made the
existence of specific infringement objectively obvious to a reasonable
person.75
After affirming the district courts requirement of specific knowledge
under 512(c)(1)(A), the Second Circuit held that summary judgment for
YouTube was premature because Viacom raised material issues of fact
regarding YouTubes red flag knowledge.76 This included evidence that
YouTube employees conducted website surveys estimating that 7580% of
all YouTube streams contained copyrighted material and evidence of
emails between Google and YouTube executives discussing employees
searches leading to the discovery of copyrighted material.77 There was also

69

Viacom, 676 F.3d at 30.

Id.
71 Id. at 3031.
72 Jack C. Schecter, Is it Safe? The Digital Millennium Copyright Acts Safe Harbor in the
Wake of Viacom v. YouTube, 59 FED. LAW. 16, 1617 (2012).
70

73
74
75
76
77

Viacom, 676 F.3d at 31; Schecter, supra note 72.

Viacom, 676 F.3d at 31.
Id.
Id. at 32.
Id. at 3233 (including episodes of well-known shows that remained on the site such as

2014

Second Circuit Knowledge Requirement

667

evidence that YouTube executives knew that some of the content was
blatantly illegal.78 Because YouTube executives had referred to the
material as blatantly illegal, a reasonable juror could have concluded that
YouTube knew the located clips were infringing and subsequently failed to
remove the content expeditiously, therefore exposing the company to
potential liability.79
2.

The Application of Willful Blindness to 512(c)(1)(A)(ii)

The Viacom Court further ruled that the district court erred in granting
summary judgment to YouTube because the company was potentially
willfully blind to specific infringing activity. 80 Viacom was the first case in
which the willful blindness doctrine is expressly applied in the DMCA
context.81 After holding that the DMCA does not abrogate willful
blindness, the court held that a copyright owner could cite willful
blindness to prove knowledge or awareness of specific instances of
infringement.82 The Second Circuit emphasized that the doctrine does not
attempt to impose an additional duty on the provider. 83 Willful blindness
only stops a provider from purposefully avoiding knowledge of specific
instances of infringement.84 On remand, the district court must determine
whether YouTube made a deliberate effort to avoid guilty knowledge.85
B. Rejection of the Specific Knowledge Requirement and Support of
Substantial Control Applied to 512(c)(1)(B)
After determining that 512(c)(1)(A) requires item-specific knowledge,
the court analyzed whether 512(c)(1)(B) requires the same. 86 Unlike its
predecessor, and contrary to the Ninth Circuits recent case, UMG, which
adopted a specific knowledge requirement,87 the Second Circuit
determined that the knowledge requirement for 512(c)(1)(B) was not the

Family Guy, South Park, and the Daily Show).

78

Id. at 33.
Id.
80 Viacom, 676 F.3d at 32, 34.
81 1 LINDEY & LANDAU, supra note 22, 1:50.50, at 1-356.951-356.96.
82 Viacom, 676 F.3d at 35.
83 Id.
84 Schecter, supra note 72, at 17.
85 Viacom, 676 F.3d at 35 (quoting In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir.
2003)).
79

86

See id. at 36.

See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 104142 (9th
Cir. 2011), superseded on rehg by UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718
F.3d 1006 (9th Cir. 2013).
87

668

New England Law Review

v. 48 | 657

same as 512(c)(1)(A) because that would render the safe harbors

knowledge requirements superfluous.88
Furthermore, the court expressed that precedent dealing with the right
and ability to control infringing activity under 512(c)(1)(B) premised
liability on the substantial influence on the activities of users, without
necessarilyor even frequentlyacquiring knowledge of specific
infringing activity.89 The court reasoned that to incorporate a specific
knowledge requirement would render the statute internally inconsistent
because 512(c)(1)(A) already requires a provider to remove infringing
material after it receives notice of the infringement to qualify for safe
harbor eligibility.90 Therefore, if a provider has specific knowledge of its
right and ability to control the activity connected to the financial benefit
and properly removes infringing material in accordance with
512(c)(1)(A)(iii)it would be inadvertently admitting that it had the
requisite knowledge for control under 512(c)(1)(B) and, in turn, would be
disqualified from the safe harbor.91
Instead the Second Circuit held, consistent with emerging case law,
that the right and ability to control activity under 512(c)(1)(B) requires
something more than the ability to remove or block access to materials
posted on a service providers website.92 While some view the holding as
a punt,93 the Second Circuit left the lower court with a standard of
substantial influence.94 Substantial influence may be exerted over a user if
the provider affirmatively monitors user activity or exercises purposeful,
culpable expression and conduct over a user. 95

88

Viacom, 676 F.3d at 36; Schecter, supra note 72, at 17, 23.
Viacom, 676 F.3d at 38.
90 Id. at 37.
91 Id.
92 Id. at 38 (quoting Capitol Records, Inc., v. MP3tunes, LLC, 821 F. Supp. 2d 627, 645
(S.D.N.Y. 2011)); see also Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1151 (N.D.
Cal. 2008).
89

93 See Schecter, supra note 72, at 17 (asserting that the court failed to answer the more
difficult question of what something more is).
94 See Viacom, 676 F.3d at 38.
95 Id.

2014

Second Circuit Knowledge Requirement

669

ANALYSIS
III. The Court Correctly Applied the Specific Knowledge Requirement
and the Willful Blindness Doctrine to 512(c)(1)(A) After Analyzing
the Language of the DMCA, Congresss Intent, and Case Law
A. The Specific Knowledge Requirement
After looking to the DMCAs language and relevant congressional
reports, it is apparent that the safe harbors threshold knowledge
requirement should strictly apply to providers that knowinglyand
wrongfullyallow copyright infringement to happen. 96 One may view this
as Congress taking sides, opting for a requirement that favors the
providers.97 But Congresss explicit protection of providers is appropriate
because copyrightable material is both easily disseminated and accessed
online today.98
Congresss intent to apply a heightened knowledge standard should be
considered more than just a win for providers.99 This standard surely
boosts providers confidence, as Congress intended, creating greater
predictability for investors, which facilitates the expansion of technologies
and overall online growth.100 The individual listening to his or her favorite
artist on Sound Cloud and the artist or copyright owner developing an
online audience should both appreciate Congresss decision to require
actual knowledge of infringement.101 A different knowledge standard
would likely find providers excessively liable.102 Furthermore, Congress
explicitly designed the safe harbors to protect providers involved in
activity that under normal copyright law would be actionable against
them.103

96 See S. REP. NO. 105-190, pt. 5, at 4556 (1998); H. R. REP. NO. 105-551, pt. 2, at 57 (1998);
Chang, supra note 11, at 199201.
97

Kevin C. Hormann, Comment, The Death of the DMCA? How Viacom v. YouTube May
Define the Future of Digital Content, 46 HOUS. L. REV. 1345, 1369 (2009).
98 S. REP. NO. 105-190, pt. 3, at 8 (Due to the ease with which digital works can be copied
and distributed worldwide virtually instantaneously . . . .).
99 But see Hormann, supra note 97, at 1348 ([T]he DMCA safe harbor provisions has [sic]
shown a clear pattern of deference to the online service providers.).
100

S. REP. NO. 105-190, pt. 2, at 2; see Jansen, supra note 46, at 15456.
See Chang, supra note 11, at 196; Cf. Eugene C. Kim, Note, YouTube: Testing the Safe
Harbors of Digital Copyright Law, 17 S. CAL. INTERDISC. L.J. 139, 140 (2007) (explaining the five
major capabilities of YouTube, revolving around individuals sharing with others).
102 See Mark A. Lemley, Rationalizing Internet Safe Harbors, 6 J. TELECOMM. & HIGH TECH. L.
101, 10102 (2007).
101

103

See id.

670

New England Law Review

v. 48 | 657

This certainly puts copyright owners at a disadvantage. 104 As their

material is being infringed upon, they are fighting an uphill battle in the
courts.105 The burden of proving infringement is on the copyright holder, as
is providing evidence that the provider had knowledge of the specific
instance of infringement at issue (in order to disqualify the provider).106
Congressional intent and case law point to a strong presumption in favor
of service providers.107 While Congress intended the DMCA to provide
clarity, greater certainty, and to foster cooperation between owners and
providers, its terms are fairly ambiguous. 108 Viacom successfully trudges
through this thick doctrine, leaving a clearer path for those who follow in
its footsteps.109
Because 512(c)(1)(A) has a knowingly and wrongfully element, the
Second Circuit rightfully held that item-specific knowledge of infringement
is required and remanded the case to the district court. 110 Viacoms specific
knowledge explanation helps clarify the parameters of 512(c)(1)(A).111 The
Second Circuit, by remanding the district courts grant of the summary
judgment in YouTubes favor, took a step in the right direction by properly
applying the specific knowledge requirement and creating a fairer
environment for copyright owners.112
While YouTube knew of infringing material in the past, its knowledge
was not instantly wrongful.113 A providers specific knowledge under
512(c)(1)(A)(i)(ii) does not instantly disqualify the provider.114 The safe
harbors protection no longer extends to a provider that allows the conduct

104

See Chang, supra note 11, at 203.

See, e.g., Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 3435 (2d Cir. 2012)
(highlighting that although plaintiff put forth facts establishing that 75-80% of YouTubes
streams contained copyrighted material, this was not enough to prove that YouTube had
actual knowledge rising to copyright infringement).
105

106

See, e.g., id. at 3235.

Cf. Chang, supra note 11, at 203.
108 Compare S. REP. NO. 105-190, pt. 3, at 20 (1998), with Chang, supra note 11, at 203.
109 Compare S. REP. NO. 105-190, pt. 3, at 20, with Chang, supra note 11, at 203, and Viacom,
676 F.3d at 2526.
107

110

Viacom, 676 F.3d at 34; see also 17 U.S.C. 512(c)(1)(A)(iii) (2012).

Cf. Chang, supra note 11, at 19798 (discussing apparent knowledge within the context
of the red flag test).
112 See Jansen, supra note 46, at 170 (stating that while there is no evidence that YouTube
failed to respond expeditiously to notices of infringement, its alleged propensity for rampant
infringement has received attention).
111

113

See Stephen A. Hess, Minesweeping the Digital Millennium Copyright Act Safe Harbors,
COLO. LAW., Oct. 2004, at 95, 98 (stating that a provider can claim protection if it removes
infringing material expeditiously).
114

See 512(c)(1)(C)(iii).

2014

Second Circuit Knowledge Requirement

671

to become wrongful by disregarding 512(c)(1)(A)(iii)s expeditious

removal requirement.115 In order for its conduct to be wrongful, YouTube
must have failed to act[] expeditiously to remove, or disable access to, the
material.116 Therefore, deciding when the provider has the requisite
specific knowledge is key.117
The difficulty in determining when a provider is disqualified from
512(c)s safe harbor lies in the awareness of infringement prong, also
known as the red flag test.118 Courts place a high burden of proof on
plaintiffs establishing this prong,119 and correctly so, but Viacom more fairly
interprets 512(c)(1)(A).120 Prior to Viacom, it was seemingly impossible for
a copyright owner to assert liability because courts were reluctant to find
apparent knowledge under the red flag test.121 Viacom clearly differentiates
specific knowledge as requiring both a subjective and objective knowledge
analysis under 512(c)(1)(A)(ii), as opposed to specific knowledge under
512(c)(1)(A)(i) and general knowledge under 512(c)(1)(A)(ii). 122 By
dismissing Viacoms general knowledge argument, the court maintains the
high standard of specific proof required in the past. 123 Therefore, in
explicitly incorporating the objective knowledge analysis, Viacom defogs a
window of opportunity for copyright owners.124
The 512(c)(1)(A)(ii) objective test asks whether the provider was
subjectively aware of facts that would have made the specific infringement
objectively obvious to a reasonable person.125 This prong is the difference
between 512(c)(1)(A)(ii) and 512(c)(1)(A)(i), which only analyzes
whether the provider subjectively knew of a specific infringementnot
whether the provider should have known.126 Because the tests work

115

See id.
512(c)(1)(A)(i)(iii).
117 Most of the struggle occurs when a provider on its ownwithout notification of
infringementdiscovers infringing material or facts that make it obvious that infringing
material is present. See 4 NIMMER & NIMMER, supra note 20, 12B.04[A][1]; Lee, supra note 3, at
251.
116

118

Lee, supra note 3, at 251.

Id.
120 See id. at 25358; cf. Viacom Intl, Inc. v. YouTube Inc., 676 F.3d 19, 3132 (2d Cir. 2012);
Chang, supra note 11, at 19798.
119

121

See Chang, supra note 11, at 19698 .

See Viacom, 676 F.3d at 32.
123 See id. at 3031.
124 Id. at 31. The Senate Report explicitly refers to the objective and subjective standards of
subsection (c)(1)(A)(ii), but courts consistently focus on the subjective knowledge of a
provider. S. REP. NO. 105-190, pt. 5, at 44 (1998).
122

125
126

Viacom, 676 F.3d at 31; see S. REP. NO. 105-190, pt. 5, at 4849.
See 17 U.S.C. 512(c)(1)(A)(ii) (2012).

672

New England Law Review

v. 48 | 657

independently of each other, the copyright owner can argue that the
service provider knew of a specific instance of infringement or that the
provider should have been aware of specific infringement. 127 Past case law
struggled to articulate this differentiation.128 Congress intended the
evolution of copyright law to continue after the DMCAs enactment and its
purpose was to facilitate these changes. 129 Viacom advances online
copyright law only after taking into consideration Congresss intentions.130
Although the DMCA and 512 will continue to take shape after Viacom,
establishing a more accessible standard for the red flag test was necessary
to achieve the DMCAs purpose.131
In identifying the type of activity that could disqualify a provider
under the 512(c)(1)(A)(ii) red flag test, the court identified some of
YouTubes potentially culpable actions.132 Under Viacom, the court stated
that the following could lead to disqualification under 512(c)(1)(A)(ii):
email requests identifying specific instances of infringement; a 2006 report
indicating an awareness of clips perceived to be blatantly illegal; and emails between executives asking about removing infringing material from
the website.133 This analysis provides greater clarity to awareness under
512(c)(1)(A)(ii).134 Additionally, there is still no duty for a provider to
search out the material, but if the provider becomes aware of an actual
infringement, the material is wrongfully on its site and the provider must
remove it expeditiouslyas if a copyright owner had actually informed it
of the specific infringement. 135 This aligns with the dual subjective and
objective standard Congress formulated and is similar to precedent that
127

Viacom, 676 F.3d at 3132 (Both provisions do independent work.).

See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 104142
(9th Cir. 2011) (stating requisite awareness under 512(c)(1)(A)(ii) requires specific
knowledge), superseded on rehg by UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718
F.3d 1006 (9th Cir. 2013); see also Chang, supra note 11, at 203.
128

129

See S. REP. NO. 105-190, pt. 1, at 12.

See, e.g., Viacom, 676 F.3d at 31, 37.
131 See Chang, supra note 11, at 198 (arguing that establishing an accessible standard for
the red flag test is necessary to achieve the purpose of the DMCA).
132 Viacom, 676 F.3d at 3234.
133 Id.
134 See id.; see also Chang, supra note 11, at 20305 (providing information on the Ninth
Circuits struggle in applying the subjective prong of the red flag test in Perfect 10, Inc. v.
CCBill LLC and the District Court for the Northern District of Californias similar struggle in Io
Group, Inc. v. Veoh Networks, Inc.); Perfect 10 Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir.
2007) (discussing the difficulty of deciding whether awareness existed under the subjective
prong); Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 114849 (N.D. Cal. 2008)
(highlighting the difficulty in applying the subjective prong where the court conflated
apparent knowledge with actual knowledge).
130

135

See Viacom, 676 F.3d at 3234.

2014

Second Circuit Knowledge Requirement

673

correctly applied 512(c)(1)(A)(ii).136 Clarifying the knowledge distinctions

between 512(c)(1)(A)(i) and (ii) ultimately will allow for greater
cooperation, even if forced upon copyright owners and providers, which is
one of the primary purposes of the DMCA.137
B. The Incorporation of Willful Blindness
The Second Circuit incorporated the common law willful blindness
doctrine into 512(c)(1)(A)(ii).138 This incorporation is important because
with its application, a provider cannot consciously avoid specific instances
of infringement that it would otherwise be aware of, nor can they attempt
to elude knowledge.139 By requiring specific knowledge for the red flag
awareness test and emphasizing the subjective and objective components
of the analysis, the willful blindness doctrine adds even more depth to
512(c)(1)(A)(ii).140 Without this doctrine, a provider in YouTubes position
could still attempt to escape liability by avoiding conduct that would lead
to the discovery of infringing activity.141 While safe harbor protection does
not require affirmative monitoring,142 willful blindness requires the court to
analyze whether a provider made a deliberate effort[] to avoid guilty
knowledge of specific infringement;143 meaning the provider allowed the
infringing material to remain wrongfully on the site by not expeditiously
removing the material.144
Some argue the addition of willful blindness to 512(c)(1)(A) lowers
the level of knowledge required to disqualify a provider. 145 In any case, the
flag must be brightly red indeedand be waving blatantly in the
providers faceto serve the statutory goal of making infringing

136 See Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)
(stating that the question under 512(c)(1)(A)(ii) is whether a service provider deliberately
proceeded in the face or turned a blind eye to red flags of blatant factors of obvious
infringement); S. REP. NO. 105-190, pt. 5, at 44 (1998).
137

Cf. Chang, supra note 11, at 21920.

See Viacom, 676 F.3d at 35 (finding that a reasonable juror could at least conclude that
YouTube was aware of facts or circumstance).
139 See UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1108 (C.D. Cal.
2009) ([I]t takes willful ignorance of readily apparent infringement to find a red flag.).
138

140

Cf. Hormann, supra note 97, at 136667.

See Kim, supra note 101, at 16162.
142 17 U.S.C. 512(m)(1) (2012).
143 Schecter, supra note 72, at 17.
144 See id.
145 See Jonathan Stempel & Yinka Adegoke, Viacom Wins Reversal in Landmark YouTube Case
Viacom Intl v. YouTube, WESTLAW J. INTELL. PROP. 2, Apr. 18, 2012, at *1, *2, available at 2012
WL 1344704 (stating that even start-ups will remove more content in fear of being held liable
by content providers).
141

674

New England Law Review

v. 48 | 657

activity . . . apparent.146 Specific infringement must still be readily

apparent to a provider, or as the YouTube executives put it: blatantly
illegal.147 To date, apparent knowledge has never been found through the
red flag test.148 While there is good reason to protect service providers,
especially those powerful enough to strengthen individualism worldwide
(like YouTube),149 copyright owners still deserveand Congress meant to
affordsome protection against blatant infringement.150 Case law prior to
Viacom interprets 512(c)(1)(A)(ii) as effectively dead after finding a
provider did not expressly know of an instance of infringement. 151 The
incorporation of the willful blindness doctrine into 512(c)(1)(A)(ii) is an
attempt to create a high, but not impossible, standard for satisfying the red
flag test.152 Willful blindness deters online providers from turning a blind
eye to apparent infringement by providing greater certainty regarding
their legal exposure for secondary liability.153 Moreover, the doctrine
provides a fairer playing field for copyright owners, giving them a better
chance of exposing a provider to liability under 512(c)(1)(A)(ii). 154 Lastly,
although the court integrates willful blindness, Viacom rightfully leaves the
overall standard of 512(c)(1)(A) as specific knowledge. 155 This maintains
the primary purpose of Title II by protecting providers from liability while
promoting cooperation between providers and copyright owners through a
high, yet realistic standard. 156

146

4 NIMMER & NIMMER, supra note 20, 12B.04[A][1].

Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 33 (2d Cir. 2012); 4 NIMMER & NIMMER,
supra note 20, 12B.04[A][1].
147

148

Chang, supra note 11, at 203.

See Daniel Margolis, Analyzing the Societal Effects of YouTube, CERTIFICATION MAGAZINE
(July 8, 2008), http://certmag.com/analyzing-the-societal-effects-of-youtube/.
149

150

S. REP. NO. 105-190, pt. 3, at 8 (1998) ([C]opyright owners will hesitate to make their
works readily available on the Internet without reasonable assurance that they will be
protected against massive piracy.).
151
152
153
154
155
156

See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007).
Cf. Chang, supra note 11, at 221.
Cf. id.
Cf. id. at 22122.
See id.; Viacom I, 718 F. Supp. 2d 514, 52325 (S.D.N.Y. 2010).
See S. REP. NO. 105-190, pt. 3, at 1920 (1998); Chang, supra note 11, at 221.

2014

Second Circuit Knowledge Requirement

675

IV. The Second Circuit Was Correct in Rejecting the Specific Knowledge
Requirement and Applying Substantial Control to 512(c)(1)(B)
Because it Brings Needed Clarity to the 512(c) Safe Harbor
A. The 512(c)(1)(B) Substantial Control Standard Brings Greater
Clarity to 512(c) Because it Provides Greater Certainty for
Copyright Owners and Service Providers
The Second Circuits decision to adopt a different standard for
512(c)(1)(B)one that does not necessarily concern a providers
knowledge of specific instances of infringementbrings further clarity to
the 512(c) safe harbor.157 Before the Second Circuits decision, the right
and ability to control analysis could mistakenly be intertwined with the
specific knowledge requirement of 512(c)(1)(A).158 This led to a diluted
analysis under 512(c)(1)(B).159 Instead of focusing on whether the
provider exercised the right and ability to control infringing activity, the
courts focused on whether requisite knowledge of specific infringement
existed.160 Viacom eliminates this distraction by removing the specific
knowledge requirement from the 512(c)(1)(B) analysis.161 With specific
knowledge restricted to 512(c)(1)(A), courts can focus on whether a
provider offered a service directly tied to infringing activity that resulted in
monetary gain.162 The proper test the Second Circuit articulated turns on
whether the provider exercised substantial control over the service or
activity, not whether the provider knew of any specific instances of
infringement.163 Section 512(c)(1)(A) already excludes providers that are
aware of specific instances of infringementwhether or not they are

157

See 4 NIMMER & NIMMER, supra note 20, 12B.04[A], [A][2][C].

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir.
2011) ([U]ntil [the provider] becomes aware of specific unauthorized material it cannot
exercise its power of authority over the specific infringing item.), superseded on rehg by
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013); Viacom I,
718 F. Supp. 2d at 527 ([T]he provider must know of the particular case before he can control
it.).
159 See UMG, 667 F.3d at 1042.
160 See id. at 104142; Hendrickson v. Amazon.com, Inc., 298 F. Supp. 2d 914, 91718 (C.D.
Cal. 2003).
158

161

Schecter, supra note 72, at 1617.

See 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][c] ([T]he same statute elsewhere
affirmatively requires a service provider to remove or block access to materials posted on its
system when it receives notice of claimed infringement.).
163 See Lee, supra note 3, at 24546 (discussing the relationship between the financial benefit
directly attributable to infringing activity and the right and ability to control that activity).
162

676

New England Law Review

v. 48 | 657

alerted to the infringementif it is proved the specific infringement is

obvious and they failed to expeditiously remove it.164
When specific knowledge is required, the high standard afforded to
providers under the provision becomes nearly impossible for copyright
owners to overcome.165 The right and ability to control infringing activity is
a concept [that] . . . cannot simply mean the ability of a service provider to
remove or block access to materials posted on its website or stored in its
system.166 Instead, it requires some kind of direct supervision by the
service provider over the infringersnot over an instance of
infringement.167 Congress did not intend the provision to stretch any
further.168
Congressional reports clarify that a provider is still protected by the
safe harbor whether it receives payment for services from infringers or
non-infringers.169 The report gives examples, such as receiving a one-time
set-up fee . . . [or] periodic payments for service from a person engaging in
infringing activities.170 Only when a providers financial benefit is plainly
tied to providing access to infringing material will the provider lose the
protection.171 An example of activity that reaches this level of culpability is
a pirating or bootlegging site charging membership fees to share and
download infringed material.172 The focus of 512(c)(1)(B) should be on the
relationship between the provider and the third-party infringers activity
not the provider and a specific instance of infringement.173 The substantial
influence analysis devised by the Second Circuit provides this
clarification.174 A provider could understand that it is profiting from a site
that primarily allows access to infringing material without specifically

164

Viacom Intl, Inc. v. YouTube, Inc., 676 F.3d 19, 3135 (2d Cir. 2012).
When a provider is thought to need knowledge of a specific instance of infringement
under 512(c)(1)(B) it renders the statute superfluous because no provider is excluded from
512(c)(1)(B) that is not already disqualified under 512(c)(1)(A). See, e.g., UMG Recordings,
Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011), superseded on rehg by
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).
165

166 Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077, 1098 (C.D. Cal. 2004) (citing Costar
Grp., Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001)).
167

See Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1109 (W.D. Wash. 2004).
See S. REP. NO. 105-190, pt. 5, at 4445 (1998); 4 NIMMER & NIMMER, supra note 20,
12B.04[A][2][b].
169 S. REP. NO. 105-190, pt. 5, at 4445.
170 Id. at 44; 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][b].
171 See S. REP. NO. 105-190, pt. 5, at 45 (It would however, include any such fees where the
value of service lies in providing access to infringing material.).
168

172
173
174

Id. at 48; 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][b].

See Lee, supra note 3, at 238, 247.
See id.

2014

Second Circuit Knowledge Requirement

677

knowing about each users infringement.175 In explicitly stating that

512(c)(1)(B) does not require specific knowledge of an infringement,
Viacom takes a leap forward in developing the protections and boundaries
of the 512(c) safe harbor.176

CONCLUSION
It is hard to believe that at the time of the DMCAs creation, legislators
could have imagined the importance of the Internet today. Similarly, it is
hard to imagine that when YouTube launched, its creators anticipated a
billion-dollar Google buyout or lengthy legal battles with media giants like
Viacom. Copyright owners, on the other hand, have always attempted to
protect their work from emerging types of infringement. The courts
provide the battleground for providers and copyright owners. Congress
intended the DMCA and 512(c) to be a starting pointnot
comprehensive. The Second Circuits decision in Viacom better balances
protection of artistic endeavors and the progress of innovation, creating a
fairer playing field. Navigating the ambiguity of 512(c), the court
correctly addressed 512(c)(1)(A) by continuing to require specific
knowledge of actual infringement, clarifying the 512(c)(1)(A)(ii) red flag
tests objective knowledge standard, and expressly incorporating the
willful blindness doctrine. With these clarifications, and by remanding the
issue of YouTubes knowledge culpability to the district court, the Second
Circuit ensures that a provider cannot claim safe harbor when avoiding
obvious infringement. Furthermore, in eliminating the specific knowledge
requirement from 512(c)(1)(B), and instead focusing on the providers
ability to substantially control user activity, the court further clarified the
boundaries of the safe harbor and the providers role in allowing access to
material and copyright owners ability to assert infringement.

175 4 NIMMER & NIMMER, supra note 20, 12B.04[A][2][c] (stating that it is necessary to look
beyond formal indicia of control to all relevant aspects of the relationship).
176 Brett White, Viacom v. YouTube: A Proving Ground for DMCA Safe Harbors Against
Secondary Liability, 24 ST. JOHNS J. LEGAL COMMENT. 811, 817 (2010) (Although no element of
knowledge is required to find vicarious liability, some courts imply that this knowledge is
imputed to an infringer that exerts control over and profits from the direct infringement.)
(emphasis added).