Washington, D.C., partner Michael Remington was quoted in a Bloomberg BNA Patent, Trademark and Copyright Journal article that discussed a recent ruling by the U.S. District Court for the Southern District of New York on whether YouTube is required to search for and remove material from its service that infringes the exclusive rights of copyright owners.

In the article, titled “Following Remand, District Court Again Says YouTube Protected By DMCA's Safe Harbors,” Mike told the BNA reporter that judicial interpretations of the DMCA's safe harbor provisions make it challenging for content owners to protect their rights in the digital arena.

Congress may not have intended to create such broad protection for service providers, he said. For instance, “I was not aware of the fact that the DMCA required the provider to ‘influence or participate in the infringement' ” in order to lose safe harbor protection, Remington said, quoting the district court.

The district court determined that YouTube Inc.'s general awareness of infringing clips on its servers did not impose upon the company an affirmative duty to search for and remove infringing material. Therefore, the district court for a second time granted YouTube summary judgment in a billion dollar copyright infringement suit brought by Viacom Inc.

An earlier award of summary judgment was overturned by the U.S. Court of Appeals for the Second Circuit. On remand, the district court was instructed to determine either if YouTube was aware of, and failed to remove, any specific infringing clips-in-suit, or if the company intentionally avoided confirming instances of specific infringement. The record shows no instance of YouTube having knowledge and failing to act on any specific instances of infringement, the district court concluded, and thus it said YouTube was protected by Section 512(c) of the DMCA.

“It is surprising to me that there is no genuine dispute as to any material fact in this case,” Remington said. “In fact, it would seem to me that there is a plethora of material facts of substance that are in dispute.”

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