## Facts

- Viacom International Inc. and related copyright owners alleged that users uploaded many unauthorized clips of Viacom-owned television programs and other audiovisual works to YouTube, where the clips were stored and streamed to the public.
- Viacom sued YouTube, LLC and Google, Inc. (collectively, YouTube) for direct and secondary copyright infringement.
- The district court previously granted summary judgment to YouTube on the ground that YouTube was protected by the DMCA § 512(c) safe harbor for material stored “at the direction of a user.”
- The court of appeals vacated in part and remanded for further proceedings under clarified standards, including whether YouTube had knowledge or awareness of specific infringements and whether YouTube had the “right and ability to control” infringing activity under 17 U.S.C. § 512(c)(1)(B).
- On remand, the district court ordered the parties to identify, for each video clip in suit, what precise information had been provided to YouTube that would identify the location of the allegedly infringing material.
- YouTube submitted a list of 63,060 clips-in-suit and stated that it had never received adequate, clip-specific notices identifying those particular infringements.
- Viacom acknowledged it had not provided clip-by-clip notifications for the clips-in-suit, contending it did not bear a burden to provide that level of specificity to defeat safe-harbor protection.
- Viacom also pointed to internal evidence from YouTube’s early operations, including decisions about when to remove certain categories of content. Viacom asserted that YouTube had at times removed clips (such as pornography, videos depicting deaths, and entire episodes of certain television programs), but later chose to leave infringing clips up unless and until it received takedown notices for particular clips.

## Issues

1. Whether YouTube had actual knowledge or “red flag” awareness of specific infringing clips in suit, sufficient to defeat DMCA § 512(c) safe-harbor protection.
2. Whether YouTube’s conduct amounted to willful blindness to specific infringements such that willful blindness could satisfy § 512(c)’s knowledge requirement.
3. Whether YouTube had the “right and ability to control” infringing activity under § 512(c)(1)(B) in a manner that would disqualify it from the § 512(c) safe harbor.

## Decision

- The court granted summary judgment for YouTube, holding that YouTube qualified for the DMCA § 512(c) safe harbor on the post-remand record.
- The court held Viacom failed to raise a triable issue that YouTube had actual knowledge or “red flag” awareness of the specific clips-in-suit, as opposed to general awareness that infringement occurred on the platform.
- The court rejected Viacom’s willful-blindness theory because the evidence did not show deliberate avoidance of knowledge of particular infringing clips at issue.
- The court held Viacom did not show that YouTube had the type of “right and ability to control” infringing activity required by § 512(c)(1)(B), beyond standard platform functions such as removing content, enforcing terms, or terminating users.

## Legal Principles

- DMCA § 512(c) safe harbor is not lost based on general knowledge that infringement exists on a service; disqualification requires knowledge or awareness of specific and identifiable infringements.
- A plaintiff seeking to defeat § 512(c) based on knowledge must connect what the service provider knew (or should have recognized) to particular infringing material, not merely to infringement in the abstract.
- The notice-and-takedown framework contemplates item-specific information sufficient to locate the material (for example, identifying data that points to the clip’s location on the service). Absent evidence that the provider received such identifying information for the clips at issue, summary judgment may be appropriate.
- Willful blindness can, in principle, satisfy § 512(c)’s knowledge requirement, but it requires proof of deliberate steps to avoid confirming specific infringing activity, not just indifference to infringement generally.
- “Right and ability to control” under § 512(c)(1)(B) requires more than routine service-provider abilities (such as removing, blocking, or terminating users); it requires a higher level of control over the infringing activity itself.
- Platform operations tied to hosting user uploads—such as processing files into playable formats and making them viewable to users—can fall within § 512(c)’s coverage when they are part of providing access to material stored at the direction of users.

## Conclusion

On remand, the court again entered summary judgment for YouTube because Viacom did not produce evidence that YouTube had clip-specific actual knowledge, “red flag” awareness, or willful blindness as to the particular clips-in-suit, and Viacom also failed to show the heightened “right and ability to control” that would remove YouTube from DMCA § 512(c)’s safe harbor.


Viacom International Inc. v. YouTube, LLC and Google, Inc., 940 F. Supp. 2d 110 (2013)