merely generic description (such as “all works by Gershwin”) would be adequate without also
giving the works’ location at the site, and would put the provider to the factual search forbidden
by Section 512(m).^2658 “Although the statute states that the ‘works’ may be described
representatively, 512(c)(3)(A)(ii), the subsection which immediately follows requires that the
identification of the infringing material that is to be removed must be accompanied by
‘information reasonably sufficient to permit the service provider to locate the material.’”^2659
Accordingly, the court granted summary judgment to the defendants that they qualified
for the Section 512(c) safe harbor.^2660
The Second Circuit’s Opinion
On appeal, the Second Circuit affirmed in part and reversed in part in a very important
opinion. The Second Circuit concluded that the district court correctly held that the Section
512(c) safe harbor requires knowledge or awareness of specific infringing activity, but vacated
the order granting summary judgment because a reasonable jury could find that YouTube had
actual knowledge or awareness of specific infringing activity on its web site.^2661
The Second Circuit turned first to the applicability of the Section 512(c) safe harbor.^2662
The court noted that, with respect to applicability of the safe harbor, the most important question
on appeal was whether the safe harbor requires actual knowledge or awareness of facts or
circumstances indicating specific and identifiable infringements, as opposed to merely a general
awareness that infringing activity is or may be present on the web site. The court concluded that
the text of Section 512(c) requires knowledge or awareness of specific infringing activity. The
court noted that the nature of the removal obligation in Section 512(c)(1)(A) itself contemplates
knowledge or awareness of specific infringing material, because expeditious removal would be
possible only if the service provider knows with particularly which items to remove.^2663 “Indeed,
to require expeditious removal in the absence of specific knowledge or awareness would be to
mandate an amorphous obligation to ‘take commercially reasonable steps’ in response to a
generalized awareness of infringement. Such a view cannot be reconciled with the language of
the statute, which requires ‘expeditious[]’ action to remove or disable ‘the material’ at issue.”^2664
The court rejected Viacom’s argument that the “red flag” provision of Section 512(c)
must require less specificity of knowledge than the actual knowledge provision in order to give
rise to a duty to act, else the red flag provision would be superfluous. The court concluded that
requiring actual knowledge or awareness of specific instances of infringement does not render
(^2658) Id. at 528-29.
(^2659) Id. at 529.
(^2660) Id.
(^2661) Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 26 (2d Cir. 2012).
(^2662) Id. at 28.
(^2663) Id. at 30.
(^2664) Id. at 30-31 (emphasis in original) (citations omitted).