## Facts

- Viacom and other copyright owners alleged that tens of thousands of unauthorized copyrighted video clips were uploaded and made available on YouTube between 2005 and 2008.
- YouTube operated a free, user-generated video platform where users uploaded videos that were stored on YouTube’s servers.
- In processing uploads, YouTube automatically made duplicates and converted videos into a Flash-compatible format (“transcoding”), then streamed videos to viewers on request.
- YouTube used automated algorithms to display and recommend videos, including “related videos.”
- Plaintiffs sought damages and injunctive relief, asserting direct infringement and secondary liability theories (including contributory and vicarious infringement).
- The district court granted summary judgment to YouTube, holding it qualified for the DMCA § 512(c) safe harbor because disqualifying knowledge required awareness of specific infringements and YouTube lacked item-specific notice for the clips at issue.

## Issues

1. Whether DMCA § 512(c)(1)(A) requires knowledge/awareness of specific infringements or whether generalized awareness of infringement on the service is enough to defeat safe harbor.
2. Whether willful blindness may establish the knowledge/awareness required to remove a service provider from § 512(c) safe harbor.
3. How to interpret “right and ability to control” infringing activity under § 512(c)(1)(B), and whether it requires item-specific knowledge.
4. Whether YouTube’s automated functions (e.g., transcoding, playback/streaming, display, and recommendations) are actions taken “by reason of the storage at the direction of a user” under § 512(c).
5. What is required to show exclusion from safe harbor for failure to accommodate “standard technical measures” under § 512(i).

## Decision

- The Second Circuit affirmed in part, vacated in part, and remanded.
- It agreed that § 512(c)(1)(A) requires knowledge or awareness of specific and identifiable infringements, not merely general awareness that infringement occurs on the service.
- It vacated summary judgment because the record could permit a reasonable jury to find YouTube had actual knowledge or “red flag” awareness of specific infringements.
- It held that willful blindness may, in appropriate circumstances, be used to establish DMCA knowledge/awareness of specific infringements.
- It rejected the district court’s view that § 512(c)(1)(B) “right and ability to control” requires item-specific knowledge, and remanded for further proceedings on the proper application of that provision.
- It affirmed that certain automated functions (including transcoding, playback/streaming, and display) were within § 512(c) as actions taken “by reason of” user-directed storage, and remanded as to an additional function where the record was insufficiently developed.
- It held that limiting access to proprietary internal tools did not, by itself, show failure to accommodate “standard technical measures” under § 512(i).

## Legal Principles

- DMCA § 512(c)(1)(A) safe harbor is defeated only by knowledge/awareness of specific and identifiable instances of infringement; generalized awareness of infringement on a platform is insufficient.
- A provider need not await formal takedown notices for knowledge to exist, but safe harbor analysis turns on evidence of knowledge/awareness tied to particular infringing material.
- Willful blindness is not displaced by the DMCA and may establish the knowledge/awareness required under § 512(c)(1)(A) when tied to specific infringements.
- “Right and ability to control” under § 512(c)(1)(B) requires more than the ordinary ability to remove or block access; it does not inherently include an item-specific knowledge requirement.
- Automated technical operations that are part of hosting and providing access to user-stored material (such as transcoding and streaming) can qualify as occurring “by reason of the storage at the direction of a user” under § 512(c).
- “Standard technical measures” under § 512(i) must meet the statutory criteria, including development by broad consensus and availability on reasonable and nondiscriminatory terms; a provider’s refusal to share proprietary tools does not alone establish nonaccommodation.

## Conclusion

The Second Circuit construed § 512(c) to require specific-infringement knowledge while allowing willful blindness to satisfy that standard, rejected an item-specific knowledge gloss on “right and ability to control,” upheld safe-harbor coverage for core automated hosting functions, and remanded for factfinding on disputed knowledge/control issues.


Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012)