Online Copyright Protections after Viacom v. YouTube

The Digital Millennium Copyright Act gives service providers a safe harbor against copyright infringement claims unless they have notice of, or actual knowledge of, specific instances of infringement and do not act expeditiously to remove or disable the content.

If the copyright holder does not provide notification, the safe harbor applies unless red flags are ignored. A service provider must show that it lacked the right and ability to control the infringing acts. A service provider is unprotected by the safe harbor if it receives financial benefit and has the right and ability to control the activity.

Federal circuits are split on the interpretation of the safe harbor provision. The Ninth Circuit has held the “right and ability to control” provision “requires control over specific infringing activity that the provider knows about.” The Second Circuit rejected that interpretation on the grounds it was merely duplicative of the knowledge provisions.

The Second Circuit also found that the mere ability to block an infringer’s access did not obviate the safe harbor provision for a service provider. It ruled that “something more than the ability to remove or block access to materials posted on a service provider’s website” is required.

Based on the circuit split and unresolved ambiguities about key terms, copyright holders and service providers should continue to monitor legal developments in this area. The author has suggestions for both service providers and copyright holders until the issues are settled.