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The Great (Online Copyright) Compromise of 2012

By Timothy Denny Greene
June 27, 2012

In perhaps the most important online copyright case since the Napster-Aimster-Grokster cases of the early 2000s, the Second Circuit recently issued an opinion in Viacom Int'l, Inc., Football Ass'n Premier League Ltd. v. YouTube, Inc., No. 10-3342-cv (2d Cir. Apr. 5, 2012). The Viacom opinion takes steps to clarify the uncertain scope of the service provider safe harbors under the Digital Millennium Copyright Act (the “DMCA”). The case involves claims brought by Viacom, among others, alleging massive copyright infringement by YouTube; YouTube has defended its service by seeking refuge in the DMCA's ' 512(c) safe harbor.

Rather than affirm the lower court's grant of full summary judgment in YouTube's favor, the Court of Appeals split the difference. The court held in YouTube's favor on the pivotal issue of whether general awareness of infringing material satisfies ' 512(c)'s knowledge requirements, finding that ' 512(c)(1)(A) requires actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement. But the court remanded for a determination of whether, on the record before the court, YouTube either had actual knowledge or was aware of such facts or circumstances. Further, the Second Circuit accepted Viacom's argument that the willful blindness doctrine may be applied in appropriate circumstances to demonstrate knowledge or awareness of specific instances of infringement. While we can imagine that neither side was jumping for joy on its release, the court's opinion does much to safeguard what the court deemed the wide latitude granted service providers in the interest of promoting Internet innovation inherent in the DMCA, while providing the content industry with a potentially powerful weapon.

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