The court first quoted extensively from the legislative history of the DMCA safe harbors,
then observed that the “tenor of the foregoing provisions is that the phrases ‘actual knowledge
that the material or an activity” is infringing, and “facts or circumstances’ indicating infringing
activity, describe knowledge of specific and identifiable infringements of particular individual
items. Mere knowledge of prevalence of such activity in general is not enough.”^2647 The court
then reviewed existing case law on the Section 512(c) safe harbor and found it to support a
similar conclusion: “if a service provider knows (from notice from the owner, or a ‘red flag’) of
specific instances of infringement, the provider must promptly remove the infringing material. If
not, the burden is on the owner to identify the infringement. General knowledge that
infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search
its service for infringements.”^2648
The court rejected the plaintiffs’ heavy reliance on the Supreme Court’s Grokster case,
finding that case’s explication of the more general law of contributory liability, and its
application to peer-to-peer filing sharing networks (which the court observed are not covered by
the DMCA Section 512(c) safe harbor), to be of little applicability in the instant case.^2649 Said
the court:
The Grokster model does not comport with that of a service provider who
furnishes a platform on which its users post and access all sorts of materials as
they wish, while the provider is unaware of its content, but identifies an agent to
receive complaints of infringement, and removes identified material when he
learns it infringes. To such a provider, the DMCA give a safe harbor, even if
otherwise he would be held as a contributory infringer under the general law. In
this case, it is uncontroverted that when YouTube was given the notices, it
removed the material. It is thus protect “from liability for all monetary relief for
direct, vicarious and contributory infringement” subject to the specific provisions
of the DMCA. Senate Report at 40, House Report at 50.^2650The court then rejected a number of other arguments made by the plaintiffs. First, the
plaintiffs asserted that the replication, transmittal and display of videos on YouTube did not
constitute infringement “by reason of the storage at the direction of a user of material” on the
site. The court found that the argument confined the word “storage” too narrowly to meet the
statute’s purpose. The court noted that the definition of “service provider” protected by the safe
harbor includes an entity “offering the transmission, routing, or providing of connections for
digital online communications.”^2651 The court inferred from this definition that “the provision of
such services, access, and operation of facilities were meant to be within the safe harbor when
they flow from the material’s placement on the provider’s system or network: it is inconceivable
(^2647) Id. at 523.
(^2648) Id. at 525.
(^2649) Id. at 525-26.
(^2650) Id. at 526.
(^2651) Id. at 526.