search was identified, and YouTube was left to find the infringing clip. A memorandum
submitted by one of the plaintiffs noted that infringing clips of well-known shows could still be
found on YouTube at the time, but the court noted that to find them would require YouTube to
locate and review over 450 clips, and Section 512(m) of the DMCA excuses YouTube from
doing that search. The court therefore concluded that the plaintiffs had made no showing of
willful blindness to specific infringement of the clips-in-suit.^2693
Turning to whether YouTube had the right and ability to control infringing activity, the
district court opined that, by its example of the extreme Grokster case as what might rise to the
level of control under Section 512(c)(1)(B), the Second Circuit kept intact its determination that
the DMCA requires actual knowledge or awareness of facts or circumstances that indicate
specific and identifiable instances of infringement before disqualifying a service provider from
the safe harbor. The district court also pointed to Ninth Circuit cases requiring high levels of
control over activities of users or purposeful conduct as in Grokster for disqualification under the
control prong.^2694 “But the governing principle must remain clear: knowledge of the prevalence
of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To forfeit that, the
provider must influence or participate in the infringement.”^2695
The plaintiffs cited evidence from prior to its acquisition by Google that allegedly
established YouTube’s willingness that its service be used to infringe and its ultimate editorial
judgment and control over the content available on the site. Specifically, the plaintiff cited
emails among YouTube founders acknowledging the need to avoid looking like a dumping
ground for copyrighted material or like BitTorrent, without risking drops in site traffic and viral
behavior. In particular, YouTube decided to take down whole movies, entire TV shows, nudity,
porn and any death videos, but to leave up music videos, news programs, sports, commercials
and comedy clips. YouTube then disabled community flagging for infringement and declined to
send automated email alerts to copyright owners when illegal content was uploaded. The
plaintiffs also noted that YouTube manually screened videos uploaded by participants in its
Director Program and its User Partner Program, although not other users, and used hash based
identification technology to prevent identical material that had been taken down from being
posted again.^2696
In response, the court observed that such evidence proved only that YouTube for business
reasons placed much of the burden on the plaintiffs to search YouTube constantly for infringing
content, and that is where it lies under the safe harbor. The court ruled that YouTube’s decisions
to restrict its monitoring efforts to certain groups of infringing clips, like its decisions to restrict
access to its proprietary search mechanisms, did not exclude it from the safe harbor, regardless of
their motivation. And the plaintiffs’ remaining evidence of control went no further than the
(^2693) Id. at 116-17.
(^2694) Id. at 117-18.
(^2695) Id. at 118.
(^2696) Id. at 199-20 & n.5.