In the ongoing, high-stakes case between Viacom and YouTube, the U.S. Court of Appeals for the Second Circuit recently held that the district court erred in granting summary judgment to YouTube on the grounds that YouTube is entitled to infringement liability protection pursuant to the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). In 2010, the district court granted summary judgment to YouTube on Viacom's copyright infringement claims, finding that YouTube was entitled safe harbor protection because YouTube had insufficient notice of the particular infringing content alleged in the lawsuit. The Second Circuit vacated the order, in part because of emails sent by YouTube co-founders discussing whether certain copyrighted content should be taken off the site suggested that a "reasonably jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."
The Second Circuit further held that while the DMCA does not require affirmative monitoring for infringing content, a "deliberate effort to avoid guilty knowledge" would result in the loss of eligibility for the safe harbor. Finally, Second Circuit considered the safe harbor requirement that an eligible service provider must "not receive a financial benefit directly attributable to the infringing activity, in a case in which the service has the right and ability to control such activity." The district court had narrowly construed the "right and ability to control" standard, finding that it required knowledge of specific infringing items. While the Second Circuit found that the "right and ability to control" requires "something more than the ability to remove or block access to materials posted…," the Second Circuit did not identify that "something more." However, the Second Circuit did conclude that the "right and ability to control" does not include a specific knowledge requirement and remanded the issue to the district court.