Why YouTube Was Asked One More Question in Viacom Appeal (Analysis)

The 2nd Circuit Court of Appeals is currently weighing whether a federal judge wrongfully dismissed Viacom's big copyright infringement lawsuit against YouTube. Last month, the parties argued their respective sides, but after the hearing concluded, the three-judge panel had one more question for YouTube.

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The appeals court wishes to know whether and how the "red flag knowledge provision would apply" under YouTube's interpretation of copyright law.

What is the red flag knowledge provision?

The Digital Millennium Copyright Act discusses circumstances in which service providers have "safe harbor" from copyright liability. Pretty much everyone agrees that if an ISP like YouTube gets a takedown notice and responds expeditiously to remove infringing material, it's safe. But where the parties disagree is in interpreting the sentence in the statute that talks about liability for ISPs when no takedown notices are sent, where an ISP doesn't have "actual knowledge" of infringing material, but it may still be "aware of facts or circumstances from which infringing activity is apparent."

This is known as the red flag knowledge provision.

The question that the 2nd Circuit keeps asking in many forms: What obligations do ISPs really have? Now, the judges have pointedly pushed YouTube for a direct answer to the issue of copyright infringement awareness beyond a takedown notice.

It's a somewhat tricky question for YouTube because its lawyers have pretty much said that it's nearly entirely the copyright holder's responsibility to inform an ISP about infringing material. We say "nearly entirely" instead of "completely" because YouTube's lawyers can't pretend that the red flag knowledge provision wasn't ever written. In his response to the 2nd Circuit, YouTube's lawyer Andrew Schapiro doesn't hypothesize a scenario where the red flag knowledge provision is indeed triggered, but he's certainly comfortable talking about when it isn't triggered:

• Anytime an ISP sees something that's less than an obvious and specific infringement
• Anytime an ISP sees something that requires investigation
• This case

Does that leave any room for the red flag knowledge provision to be truly meaningful? Who knows, but as Schapiro points out, other courts (Veoh, MP3Tunes, etc.) have adopted this narrow interpretation.

Viacom will now have a chance to make a rebuttal and give its explanation why Congress had a clear purpose when writing up this portion of the DMCA.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner