The US Court of Appeals for the Eleventh Circuit has affirmed a judgment in favour of YouTube, in a case concerning the platform’s duty to remove infringing content from its site and whether YouTube should lose their safe-harbour protection provided under the Digital Millenium Copyright Act (DMCA).
Athos Overseas, which owns copyright in a number of Mexican and Latin American films, originally submitted a takedown request to YouTube after it discovered that some of its films had been posted to YouTube without permission. Following the request, YouTube removed the infringing videos in question from the site accordingly. However, Athos then discovered further infringing content on YouTube after the take down request was submitted.
Athos subsequently alleged that YouTube had knowledge of the additional infringing content but ignored it and failed to remove the videos, therefore should not enjoy safe-harbour protection under the DMCA. Athos submitted that this knowledge was either ‘actual’ knowledge, or was ‘red flag’ knowledge under sections 512 (C)(1)(A)(i), section 512 (C)(1)(A)(ii) (resp.) of the US Copyright Code. It further alleged that YouTube had turned a blind eye for financial gain (s. 512(C)(1)(B).
At the trial, no evidence was found to show that every video uploaded to YouTube is monitored automatically, including for copyright infringement, but rather it up to the rights holder to submit a takedown request. The lack of control that YouTube have over the user’s infringing activity led to the Court’s dismissal of the claimant’s assertion that YouTube should be denied safe harbour on the s. 512(c)(1)(B) ground.
The Court also had to assess whether YouTube should have removed other infringing content following submission of this request. Athos argued that the additional infringing videos would have been flagged to YouTube when they investigated their take down request but that this was ignored, however it was decided the Claimant’s submission of a takedown request was not enough to initiate a wider investigation by YouTube into other potentially infringing videos, in other words, the burden had not shifted onto them following the takedown request. However, if a provider were to have specific knowledge of specific instances of infringement, and failed to remove them from their site, it may stand to lose its safe-harbour protection.
This decision confirms that, in the US, platforms hosting user generated content are not required search for or monitor all related content for potential infringement when a takedown request is submitted, and can therefore still enjoy the DMCA’s safe harbour protection.
If you have any questions on the above, or if you need any advice or support in respect of your own Intellectual Property, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
