By: Kristine Holm
Last week, the Second Circuit handed down its long-awaited decision in the Viacom v. YouTube copyright litigation. Although those on each side of the argument claimed that the decision fell in their respective favor, the Court’s rulings in its complex, 39-page opinion did not provide a clear “win” for either the content industry or the tech industry. Some issues were seemingly answered, but then remanded for further fact finding. In short, this opinion did not provide definitive answers as to whether YouTube’s actions have removed it from the DMCA’s safe harbor protection. In fact, it makes us wonder – should Mark Zuckerburg close his Facebook account in light of this decision?
We ask this question to illustrate the lingering uncertainty that tech companies face with respect to liability for knowledge of infringing content on their websites. Section 512(c) of the DMCA provides a safe harbor from liability for online service providers whose users upload copyright-infringing content. However, an online service provider is disqualified from this safe harbor protection if it has knowledge of specific instances of infringing content on its site and does not act expeditiously to remove that content. This knowledge can be actual knowledge, or can be what is referred to as “red flag” knowledge, i.e., an awareness of facts and circumstances from which infringing activity is apparent. In the YouTube case, the Second Circuit held that the District Court interpreted the DMCA correctly – that in order to be disqualified from the safe harbor, knowledge of infringement, whether actual or red flag, must be specific and not merely a general awareness.
Although YouTube affirms a high standard for demonstrating knowledge – which, on its face, is good news for the tech industry – the Court then held that the District Court’s summary judgment for YouTube was premature. After reviewing the facts on record, the Court found that a reasonable juror could conclude that YouTube had actual knowledge of infringing activity, or was aware of facts and circumstances from which specific infringing activity was apparent. Thus, the District Court erred in granting summary judgment.
Specifically, the Court gave weight to several internal email exchanges in which YouTube’s founders identified video clips uploaded by users and discussed whether those clips should remain online. In the emails, specific videos are discussed, including “budlight [sic] commercials” and a “CNN space shuttle clip.” Furthermore, the words “clearly infringing, official broadcast footage” were used with regard to Premier League football (soccer) footage, and the words “blatantly illegal” were used in reference to video clips of Viacom television shows including Family Guy, South Park, MTV Cribs, Daily Show, and Reno 911. The Court believed that these aforementioned emails could indicate the type of specific knowledge necessary to be disqualified from the safe harbor protection and incur liability for infringement (in contrast, the Court did not find the requisite specificity in the general knowledge that an estimated 60% to 80% of all material on YouTube was infringing).
Which brings us back to Mr. Zuckerberg…. If Mark Zuckerberg is logged in to his Facebook account and, while browsing through his friends’ photo albums comes across infringing content, does Facebook now have knowledge of specific infringement sufficient to incur liability? If, for example, one of Zuck’s friends has posted still photos from Hollywood movies or other material that could be considered “clearly infringing” or “blatantly illegal,” could Facebook fall outside of the safe harbor for those specific instances? If the emails in the YouTube case may be sufficient to constitute knowledge, then perhaps Zuckerberg’s comments on an infringing photo would constitute knowledge of that infringing material.
In summary, although the YouTube decision affirmed the necessity for specific knowledge of infringing activity before incurring liability, it leaves open, for the time being, the type of knowledge that would rise to this level. Tech companies should follow this case on remand in order to remain apprised of the answers to this question.
MasurLaw is a full-service transactional law firm focused on the media, entertainment and technology sectors.