that they are left exposed to be claimed as unprotect infringements.”^2652 The court agreed with
the ruling in Io Group v. Veoh^2653 that “by reason of” in the Section 512(c) safe harbor means
“as a result of” or “something that can be attributed to.”^2654
Second, the court rejected the plaintiffs’ argument that YouTube did not qualify for the
safe harbor because it derived a financial benefit directly attributable to the infringing activity,
over which it had the right and ability to control. The court held that the “right and ability to
control” the activity requires knowledge of it, which must be item-specific. A service provider
must know of a specific infringement before the service provider can control it.^2655 Under the
court’s logic with respect to this knowledge requirement, so long as YouTube acted to take down
infringing material once it received specific knowledge of it (including through red flags), the
financial benefit prong would not provide an independent basis on which to disqualify the safe
harbor.
Third, the court rejected a number of other smaller bases asserted by the plaintiffs as
disqualifying YouTube from the safe harbor:
- The court found YouTube’s repeat infringer policy to be reasonable when it counted as
only one strike against a user both a single DMCA take-down notice identifying multiple videos
uploaded by the user and multiple take-down notices identifying videos uploaded by the user
received by YouTube within a two-hour period.^2656 - The court also found reasonable YouTube’s treatment of takedowns resulting from its
“Claim Your Content” system. YouTube used Audible Magic technology to remove an
offending video automatically if it matched some portion of a reference video submitted by a
copyright owner who had designated the service. It also removed a video if the rightsholder
operated a manual function after viewing the infringing video. YouTube assigned strikes only
when the rightsholder manually requested the video to be removed. In addition, the court found
YouTube’s initial hesitation in counting manual removals as strikes to be reasonable.
YouTube’s six month delay in counting such strikes was needed to monitor the system’s use by
rightsholders, and for engineering work to assure that strikes would be assigned accurately.^2657
Finally, in an important ruling, the court rejected the plaintiffs’ complaint that YouTube
removed only the specific clips identified in DMCA notices, and not other clips which infringed
the same works. The plaintiffs pointed to the provision in Section 512(c)(3)(A)(ii) that permits a
representative list of infringing works at the site. The court ruled that this “representative list”
provision would eviscerate the required specificity of notice if it were construed to mean a
(^2652) Id. at 526-27.
(^2653) 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008).
(^2654) YouTube, 718 F. Supp. 2d at 527.
(^2655) Id.
(^2656) Id. at 527-28.
(^2657) Id. at 528.