provision, it should remand for fact finding on the question of whether any of the clips in suit
were in fact syndicated to any other third party.^2690
Finally, the Second Circuit addressed the plaintiffs’ argument that YouTube’s repeat
infringer policy was inadequate because YouTube had deliberately set up its proprietary
identification tools to try to avoid identifying infringements of the plaintiffs’ works by permitting
only designated “partners” to gain access to those identification tools by which YouTube would
conduct network searches and identify infringing material. The court rejected this argument,
noting that Section 512(m) provides that the Section 512(c) safe harbor is not conditioned on a
service provider monitoring its service or affirmatively seeking facts indicating infringing
activity, expect to the extent such monitoring comprises a “standard technical measure” within
the meaning of Section 512(i). The court noted that, while refusing to accommodate or
implement a “standard technical measure” exposes a service provider to liability, refusing to
provide access to mechanisms by which a service provider affirmatively monitors its own
network has no such result. In this case, the plaintiffs had made no argument that YouTube’s
content identification tools constituted “standard technical measures,” and YouTube could
therefore not be excluded from the safe harbor by dint of a decision to restrict access to its
proprietary search mechanisms.^2691
The District Court’s Opinion on Remand
On remand, the district court again granted summary judgment for YouTube. With
respect to the issue of actual knowledge, the court noted that Viacom had recognized that it had
failed to come forward with evidence establishing YouTube’s knowledge of specific clips-in-
suit. Viacom argued that fact did not matter, because it was not Viacom’s burden to prove
notice. Viacom argued that because YouTube was claiming the statutory defense, it had the
burden of establishing each element of the defense, including the lack of knowledge or
awareness of Viacom’s clips-in-suit. The court rejected this argument, noting that the DMCA
places the burden of notifying the service provider of infringements upon the copyright owner,
and because Viacom had acknowledged that it lacked the kind of evidence that would allow a
clip-by-clip assessment of actual knowledge, Viacom had failed to show actual knowledge on
YouTube’s part.^2692
With respect to the issue of willful blindness, the district court noted the Second Circuit
had recognized that willful blindness is not the same as an affirmative duty to monitor. From the
Second Circuit’s discussion of “red flags,” the district court concluded that under the DMCA,
what disqualifies the service provider from the safe harbor is blindness to specific and
identifiable instances of infringement. Here, the examples proffered by the plaintiffs to which
YouTube was allegedly willfully blind gave at most information that infringements were
occurring with particular works, and occasional indications of promising areas to locate and
remove them. The specific locations of infringements were not supplied – at most, an area of
(^2690) Id. at 40.
(^2691) Id. at 40-41.
(^2692) Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 114-15 (S.D.N.Y. 2013).