In a related development, on April 5, 2012, the Second Circuit issued its opinion in Viacom Intern., Inc. v. YouTube, Inc., Nos. 10-3270-cv and 10-3342-cv, 2012 WL 1150851 (2d Cir. Apr. 5, 2012). In that case, the Court was presented with a question similar to the one tackled by the Ninth Circuit in UMG Recordings v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011)—namely, what level of specificity is required of a service provider’s knowledge of infringement before its conduct falls outside the safe harbor provisions of the DMCA. Rejecting the plaintiff’s contention that objective knowledge of “facts and circumstances” is enough to meet the “actual knowledge” standard of 17 U.S.C. § 512(c), the Court adopted the reasoning of the Ninth Circuit in holding that the statute requires “[a]ctual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement [to] disqualify a service provider from the safe harbor.” Viacom Intern., Inc. at *7. According to the Second Circuit, subjective knowledge of facts and circumstances of the specific infringement is required by the actual knowledge standard. Id. at *6. In adopting the reasoning of the Ninth Circuit on this point and confirming the necessity of subjective knowledge in order to remove a service provider from the benefits of the DMCA safe harbor provisions, the Second Circuit has further confirmed the strength of these provisions for digital service providers.
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Second Circuit adopts Ninth Circuit reasoning regarding “actual knowledge” for DMCA safe harbor provisions
- Quinn Emanuel Urquhart & Sullivan LLP
- June 27 2012
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