[I]mporting a specific knowledge requirement into § 512(c)(1)(B) renders the
control provision duplicative of § 512(c)(1)(A). Any service provider that has
item-specific knowledge of infringing activity and thereby obtains financial
benefit would already be excluded from the safe harbor under § 512(c)(1)(A) for
having specific knowledge of infringing material and failing to effect expeditious
removal. No additional service provider would be excluded by § 512(c)(1)(B)
that was not already excluded by § 512(c)(1)(A).^2623The Ninth Circuit was apparently persuaded by this criticism, because in its 2013 opinion, as
elaborated below, the Ninth Circuit adopted the Second Circuit’s view that the right and ability
to control requires something less than item-specific knowledge but “something more” than the
general ability to locate infringing material and terminate access.
In its 2013 opinion, the Ninth Circuit began its analysis by addressing UMG’s argument
that Section 512(c) should be interpreted as the court did in the common law vicarious liability
context in the Napster case. The Ninth Circuit noted that the Viacom case rejected that reading,
and the Ninth Circuit said it too was not persuaded for several reasons. First, Section 512(c)
nowhere mentions the term “vicarious liability.” Although it uses a set of words that has
sometimes been used to describe common law vicarious liability, the language used in the
common law standard is loose and has varied. Second, Section 512(c) presumes that service
providers have the sort of control UMG argued satisfied the right and ability to control
requirement – namely, the ability to remove or disable access to infringing material. The court
concluded that Congress could not have intended for a service provider to lose immunity under
the safe harbors because it engaged in acts that are specifically required by the DMCA. The
court also noted that Napster was decided after the DMCA was enacted, so Congress could not
have intended to codify Napster’s precise application upon which UMG was relying. Third, the
court pointed to three legislative history reports of the DMCA where Congress stated explicitly
that the DMCA was intended to protect qualifying service providers from liability for all
monetary relief for direct, vicarious and contributory infringement, so it would be illogical to
read Section 512(c) as entirely coextensive with common law vicarious liability standards.^2624
The court noted that its reading of Section 512(c)(1)(B) was reinforced by the fact that
the statute would be internally inconsistent in other respects were it to interpret the right and
ability to control language as UMG urged. First, Section 512(m)’s provision that the safe
harbors are not conditioned on the service provider monitoring its service for infringing activity
cut against holding Veoh’s general knowledge that infringing material could be uploaded to its
site triggered an obligation to police its services to the fullest extent possible, as required in
Napster. The Ninth Circuit also noted that it had held in the CCBill case that Section 512(c)
imposes no investigative duties on service providers and places the burden of policing copyright
infringement squarely on the owners of the copyright. And CCBill had not suggested that
(^2623) Viacom, 676 F.3d at 36.
(^2624) UMG Recordings, 718 F.3d 1026-28.