In a case that has now been in litigation for more than five years, and in an appeal that drew close to a hundred amici briefs, the U. S. Court of Appeals for the Second Circuit has explained its position on the contours of the Digital Millennium Copyright Act's (DCMA's) safe harbor provision that limits the liability of online service providers who permit users to post content on their websites. Viacom Int'l v. YouTube, Case No. 10-3270 (2nd Cir., April 5, 2012) (Cabranes, J.).

The trial court granted summary judgment to YouTube on all claims of direct and secondary copyright infringement, concluding that YouTube was immune from liability under the safe harbor provision of the DCMA, 17 U.S.C. § 512.

Viacom appealed and the 2d Circuit has now reversed the summary judgment. While reiterating that liability (for copyright infringement) under the DCMA requires proof that an online service provider has “knowledge or awareness of specific infringing activity,” the 2d Circuit vacated the summary judgment concluding that “a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.” In its remand, the 2d Circuit instructed the district court to determine, for some specific video clips, whether YouTube had knowledge or awareness of specific instances of infringement and instructed the district court to apply the “willful blindness” doctrine “in appropriate circumstances.” The Second Circuit also instructed the district court to review whether YouTube’s right and ability to control infringement on its site made the DMCA’s safe harbors inapplicable.