shows can still be found [on YouTube]: Family Guy, South Park, MTV Cribs, Daily Show,
Reno 911, [and] Dave Chapelle [sic].” He further opined that, “although YouTube is not legally
required to monitor content ... and complies with DMCA takedown requests, we would benefit
from preemptively removing content that is illegal and likely to attract criticism.” He also noted
that “a more thorough analysis” of the issue would be required.^2669
The court held that a reasonable juror could conclude from the March 2006 report that the
founder knew of the presence of Viacom-owned material on YouTube, since he presumably
located specific clips of the shows in question before he could announce that YouTube hosted
the content “as of today.” A reasonable juror could also conclude that he believed the clips he
located to be infringing since he referred to them as “blatantly illegal,” and that YouTube did not
remove the content from the web site until “a more thorough analysis,” thus exposing the
company to liability in the interim. The court also pointed to other email exchanges between
founder Chad Hurley and Steven Chen, in which Hurley identified specific copyrighted material
that should be taken down but Chen requested that the material stay up a bit longer, in one
instance suggesting that a CNN space shuttle clip remain up until “we’re bigger and better
known.”^2670 Based upon this various evidence, the court concluded that the plaintiffs “may have
raised a material issue of fact regarding YouTube’s knowledge or awareness of specific instances
of infringement.”^2671 Accordingly, the court vacated the district court’s order granting summary
judgment and instructed the district court to determine on remand whether any specific
infringements of which YouTube had knowledge or awareness corresponded to the specific clips
that were in suit.^2672
The Second Circuit next turned to an issue of first impression – the application of the
common law doctrine of willful blindness in the DMCA context – raised by the plaintiffs’
argument that the district court also erred in granting summary judgment because there was
evidence that YouTube was willfully blind to specific infringing activity, which should be
treated as tantamount to knowledge. The court noted that, as a general matter of statutory
interpretation, a statute should be interpreted to abrogate a common law principle only if the
statute speaks directly to the question addressed by the common law. The DMCA provision
most relevant to the abrogation inquiry, in the court’s view, was Section 512(m), which provides
that safe harbor protection is not conditioned upon a service provider monitoring its service or
affirmatively seeking facts indicating infringing activity.^2673 The court noted that Section
512(m) “is incompatible with a broad common law duty to monitor or otherwise seek out
infringing activity based on general awareness that infringement may be occurring.”^2674
However, that fact did not end the abrogation inquiry because willful blindness cannot be
defined as an affirmative duty to monitor. The court ruled:
(^2669) Id.
(^2670) Id. at 33-34.
(^2671) Id. at 34.
(^2672) Id.
(^2673) Id. at 34-35.
(^2674) Id. at 35.