Back in 2010 a district court threw out Viacom’s $1 billion lawsuit against YouTube because the video website was protected by the Digital Millenium Copyright Act. Viacom appealed the case based on certain legal theories that would get around the DMCA safe harbors. However many of their arguments were not as receptive by the court system as they had anticipated.
The court was suggesting that YouTube might be liable for copyright infringement if they had exerted ?substantial influence? on the infringing activities of users. The court sent the case back to the district court to conduct some fact-finding. The Second Circuit joined the Ninth Circuit in rejecting the theory that YouTube would lose safe harbor protection if it had general awareness of infringement.
“Similarly, Viacom tried to import the common law ‘vicarious liability’ standard into the DMCA by an aggressive reading of a DMCA exception to the safe harbor where the ISP has the right and ability to control infringing activity. On that theory, any service provider who could block access to particular materials could lose the safe harbor protections. As the court recognized, that theory doesn?t make sense: the notice and takedown provisions specifically contemplate such blocking where there is notice of infringement ? if Viacom were right, the safe harbors would hardly be ‘safe,'” wrote Corynne McSherry on the EFF blog.
The court even rejected Viacom’s claim that YouTube was “willfully blind” to infringement because they failed to monitor for it. Service providers do not have a duty to monitor and Viacom does not even qualify as a service provider under the DMCA because it is more like a storage locker.