In 2007 Viacom sued You Tube for copyright infringement. In 2010 a federal judge issued a summary judgment that YouTube was covered under the “safe harbor” provisions of the Digital Millennium Copyright Act. The District Court held that the DMCA shielded You Tube from liability for infringing content uploaded by its subscribers. Most readers of this blog know that You Tube would not be liable unless the copyright owners notified them of the infringing material and You Tube then failed to remove the infringing content from their site. An exception to the DMCA shield is if a website has “actual knowledge” of infringing matter on their site and fails to take it down. Waiting for notice from the content owner is not a defense in that situation.
In the Viacom/You Tube case there was evidence that You Tube turned a blind eye to infringing content on their website unless and until they received a take down notice from the copyright owner. For example it was reported that a YouTube co-founder responded to an internal email by insisting that a CNN space shuttle clip could remain up for at least another two weeks because it would take the cable news network that long to get a cease-and-desist order.
Should the District Court have dismissed the law suit? The 2nd Circuit Court of Appeals said “no” and sent it back to the District Court for a determination of actual knowledge. The Appeals court said that a legal doctrine known as “willful blindness” could be applied in some circumstances regarding the Digital Millennium Copyright Act and left it to the lower court judge to determine whether YouTube executives made a “deliberate effort to avoid guilty knowledge.” (The Tennessean)
The Appeals Court held that a reasonable jury could have found that YouTube knew of specific infringing activity on its website.