Published by LawTechie - June 24, 2010 - LawTechie

The Southern District of New York has held that YouTube enjoys the protections of the Digital Millennium Copyright Act (DMCA) “safeguard” exception for Internet Service Providers.

Section 512(c) of the DMCA protects ISPs from copyright infringement claims for storing user-uploaded infringing content so long as the ISP does not have “actual knowledge” of the infringement or “is not aware of the facts and circumstances from which infringing activity is apparent” or expeditiously removes the infringing content upon receiving notice of the violation. The Court has ruled that YouTube benefits from the DMCA’s safeguard because its services are analogous to that of an ISP (it provides storage for user uploads of videos) and it does not directly benefit from the uploaded content (e.g., YouTube does not charge people to watch the uploaded videos).

The most interesting aspect of this case is the Court’s decision that YouTube’s general knowledge that users tend to upload infringing content (like music videos) does not raise sufficient “red flags” to count as being “aware of the facts and circumstances from which infringing activity is apparent.”

In other words, YouTube knows that it hosts infringing content; we, the users, know that YouTube hosts infringing content; the entire world pretty much knows that YouTube hosts infringing content; but this knowledge is too “general” to raise red flags of infringement. Thus YouTube is liable only if YouTube is notified of infringement by the content owner and then fails to expeditiously remove that content.

This is a big ruling for publishers of user-based content who, by emulating YouTube’s Terms of Service and Policy, can likewise shield themselves under the DMCA’s safeguard.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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