After a previous ruling against Viacom in the billion-dollar copyright infringement case brought by Viacom, three legal scholars filed a brief in support of Viacom's appeal (for further details please see "Amici curiae brief filed in Viacom v YouTube appeal"). The experts stated that:

"the central issue in this case are the legal tests for contributory and vicarious liability for copyright infringement from the use of Internet sites - in this instance, the YouTube site - to reproduce and disseminate large amounts of copyrighted material without authorization from copyright owners."

The US district court had previously ruled in favour of YouTube and Google, holding them protected against claims of copyright infringement by the safe harbour provisions of the Digital Millennium Copyright Act.

On April 5 2012, in ruling on the appeal, the US Second Circuit Court of Appeals essentially breathed new life into Viacom's case, remanding it back to the lower court and instructing the district court judge to determine whether YouTube had knowledge of specific infringing material and wilfully blinded itself to that knowledge.

The ruling vacates the district court's summary judgment against Viacom, noting that the facts might be interpreted by a reasonable jury in a way that would not exonerate or exculpate YouTube from liability. In his opinion, US Circuit Judge Jose A Cabranes wrote:

"We conclude that the District Court correctly held that the 512(c) safe harbor requires knowledge or awareness of specific infringing activity, but we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."

For further information on this topic please contact Joseph I Rosenbaum at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email ([email protected]).