On April 5, 2011, in a long-running and ongoing litigation between Viacom1 and YouTube,2 and a related action brought against YouTube by The Football Association Premier League, et al.,3 the U.S. Court of Appeals for the Second Circuit considered the Digital Millenium Copyright Act (DMCA) provision which, under specified conditions, could provide a “safe harbor” insulating an Internet service provider (ISP) from liability based upon the uploading of infringing content by ISP users. The Second Circuit vacated the district court’s grant of summary judgment in favor of YouTube, and remanded the case for further proceedings to determine whether YouTube had satisfied the safe harbor’s statutory prerequisites as delineated in the opinion.4

The crux of the dispute concerns whether YouTube qualifies for the safe harbor provision set forth in §512 (c) of the DMCA, 17 U.S.C. §512(c), which requires that an ISP have neither actual nor constructive knowledge of the infringing activity nor the right and ability to control it. Without benefit of this statutory safe harbor, an ISP is required to remove infringing materials uploaded by its users without awaiting specific notice and takedown requests. But to the extent that an ISP qualifies for a safe harbor, the burden falls on the content owner to track infringing material, notify the ISP of its location on the website and request its removal.

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