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Viacom Lawsuit Reinstated: Will DMCA Safe Harbor Save YouTube?

By Robyn Hagan Cain on April 05, 2012 | Last updated on March 21, 2019

Viacom and YouTube are heading back to court.

The Second Circuit Court of Appeals reinstated Viacom’s $1 billion lawsuit against YouTube and Google Thursday. Viacom claims that YouTube, which is owned by Google, violated the Digital Millennium Copyright Act (DMCA) by allowing users to post copyright-protected content from Viacom’s networks without permission, reports The Wall Street Journal.

YouTube previously won its summary judgment motion to dismiss the case based on the DMCA safe harbor provision. This week, the Second Circuit vacated that decision, noting that there were triable issues regarding whether YouTube was entitled to safe harbor protection. The litigants will now return to the district court to argue whether YouTube turned a blind eye to users posting protected content on the site.

The DMCA safe harbor is available to service providers that meet the "conditions of eligibility." Those conditions include the adoption and reasonable implementation of a "repeat infringer" policy that sets a plan for terminating repeat infringers' accounts. A qualifying service provider must also accommodate "standard technical measures" that are "used by copyright owners to identify or protect copyrighted works."

The safe harbor imposes certain obligations on the service provider. Actual knowledge of infringing material, awareness of facts or circumstances that make infringing activity apparent, or receipt of a takedown notice will each trigger an obligation to expeditiously remove the infringing material. If a service provider doesn't act quickly to take down the copyright-protected content, it can't hide behind safe harbor protection.

The Second Circuit Court of Appeals instructed the district court to take a closer look at how YouTube responded to infringing activity to determine whether it is entitled to DMCA safe harbor protection.

In the opinion, Second Circuit Judge Jose A. Cabranes wrote, "We conclude that the district court correctly held that the ... safe harbor requires knowledge or awareness of specific infringing activity, but we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."

While Viacom and YouTube are working together to produce YouTube channels featuring Viacom content, Viacom still wants use this case to discourage Internet companies from building a business on protected content, reports The Wall Street Journal.

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