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We've always viewed the Ninth Circuit Court of Appeals as more of a leader than a follower, but it looks like the San Francisco-based appellate court may follow the Second Circuit's lead in the Viacom-YouTube litigation.
The Ninth Circuit Court might "re-examine" the Digital Millenium Copyright Act (DMCA) copyright infringement safe harbor standards, according to The Hollywood Reporter. The Ninth Circuit ruled last year in UMG vs. Veoh, a case dealing with user-uploaded music videos, that YouTube-style video-sharing website was protected under the safe harbor provision.
The Second Circuit Court of Appeals came to a different conclusion in April, and reinstated Viacom's $1 billion lawsuit against YouTube and Google. Viacom had claimed that YouTube, which is owned by Google, violated DMCA by allowing users to post copyright-protected content from Viacom's networks without permission, reports The Wall Street Journal.
YouTube had previously won dismissal on summary judgment motion in a district court which, like the Ninth Circuit, held that the DMCA safe harbor provision applied in the case. The Second Circuit vacated that decision, noting that there were triable issues regarding whether YouTube was entitled to safe harbor protection.
The DMCA safe harbor is available to service providers that meet the "conditions of eligibility." Those conditions include the adoption and reasonable implementation of a "repeat infringer" policy that sets for a plan for terminating repeat infringers accounts. In addition, a qualifying service provider must accommodate "standard technical measures" that are "used by copyright owners to identify or protect copyrighted works."
The safe harbor imposes certain obligations on the service provider. Actual knowledge of infringing material, awareness of facts or circumstances that make infringing activity apparent, or receipt of a takedown notice will each trigger an obligation to expeditiously remove the infringing material. If a service provider doesn't act quickly to take down the copyright-protected content, it cannot receive safe harbor protection.
The Second Circuit instructed the district court to take a closer look at how YouTube responded to infringing activity to determine whether it is entitled to DMCA safe harbor protection.
Though the Ninth Circuit Court of Appeals is not bound by the Second Circuit's Viacom-YouTube decision, it looks like the court is second-guessing its earlier decision. The Hollywood Reporter reports that the court has asked the Veoh parties to submit briefs on the question: "Does the Second Circuit draw the correct distinction between actual and red flag knowledge? If so, does the distinction affect the disposition of this case?"