Thursday, May 3, 2012

DMCA Safe Harbor Vulnerability

The Digital Millennium Copyright Act's safe harbor provision for Internet service providers may be experiencing some cracks.  In Viacom International Inc., et al v. YouTube Inc., et al., the 2nd Circuit ventured from traditional rubber stamp summary judgment granting of immunity.  Service provider actual knowledge of infringement is still required in order to void Section 512(c) immunity.  Nonetheless, the 2nd Circuit did not grant summary judgment for YouTube because it found the record created a factual issue regarding YouTube's knowledge of instances of infringement.  Basically, the Court found that there was sufficient evidence of YouTube's knowledge to take to a jury.  This cuts against the recent trend of unfettered robust content distributor immunity. 

This is an important decision for copyright litigation attorneys, especially those with Internet law expertise representing Internet service providers.  That is because courts that choose to adopt the 2nd Circuit's approach are likely to engage in a meaningful factual inquiry of whether or not content distributors such as YouTube possessed knowledge of specific infringements.  Therefore, more of these cases could find their way to juries which provides a much greater incentive for YouTube to settle claims brought by content owners such as Viacom. 

1 comment:

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