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Clarifying Contours Of DMCA's Safe Harbor

Second Circuit revives billion-dollar YouTube infringement suit

Connecticut Law Tribune

April 16, 2012

Authors: Susan S. Murphy, Patrick M. Fahey

The Second Circuit’s recent decision in Viacom International Inc. v. YouTube Inc., No. 10-3270-cv (April 5, 2012) takes on the scope of the liability that an Internet service provider may have for copyright infringement by its users — liability that, in the Viacom case, may run as high as a billion dollars.

Digital Millennium Copyright Act

The scope of an Internet service provider’s liability for copyright infringement on its network is defined by the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. The DMCA is meant to provide certainty to Internet service providers regarding their potential liability for copyright infringement taking place on their networks by setting forth certain statutory criteria that, if met, provide a safe harbor from liability for money damages.

At issue in the Viacom case is the DMCA safe harbor for information residing on systems or networks at the direction of users. This safe harbor applies only if the service provider, among other things:

• Does not have actual knowledge of infringing material residing on its system
• Does not have apparent knowledge of infringing material (often referred to in the case law as “red-flag” knowledge)
• Acts expeditiously to remove or disable access to infringing material when it obtains knowledge of infringement (either on its own or through the DMCA’s notice provisions)
• Does not receive a direct financial benefit from the infringing activity where it has the right and ability to control such activity
• Has designated an agent to receive notifications of claimed infringement.

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