The original judgment in the case of Viacom against YouTube is a complete and total victory for YouTube. The court effectively dumped the case on summary judgment stage, it is recognized that qualified for YouTube DMCA safe harbors, and Viacom has been trying to change the clear definitions in the safe harbor provisions. This maximalist copyright of many evils, and we heard stories about how the decision would not survive appeal. To some extent, that was correct. The ruling came today in the call, and certainly that walk back to the original sentence, but overall still advice

position to YouTube.

The key issue at trial revolved around the question of knowledge called "red flag" - and if that meant that the specific knowledge that they were infringing items ( such as YouTube and the trial court believes) or just the general knowledge of the infringement on the site (as argued by Viacom). In this case, the Court of Appeal correct in saying that expertise

necessary.

Although the parties raise several arguments on appeal, is the text of the law which compels our conclusion. In particular, we believe that the basic operation of § 512 (c) requires the knowledge or awareness of the specific activity of the offense. Under § 512 (c) (1) (A), knowledge or awareness is not enough to disqualify the service, but the vendor who wins the knowledge or awareness of infringing activity port protection kept safe if it "acts expeditiously to remove or disable access to the area." 17 USC § 512 (c) (1) (A) (iii). Therefore, the nature of the obligation to withdraw provides knowledge or awareness of offender specific hardware, because the rapid expulsion is possible only if the service knows in detail the items to delete. In fact, at the request of the rapid elimination in the absence of knowledge specific or awareness would be to require the amorphous obligation to "take commercially reasonable measures" in response to a widespread awareness of the offense. Viacom 33 Br. This view can not be reconciled with the language of the law, which requires "prompt []" action to remove or disable

"hardware" in question. 17 USC § 512 (c) (1) (A) (iii) (emphasis added).

The court rightly rejects the idea that the "red flag" of knowledge of the DMCA means that knowledge that there is a violation - without knowing the details - means you lose the safe harbor. Since this is the key issue in the application, it is good that the court Appeals that right. It was also the point that the maximalist insisted that no appellate court to defend, and clearly they were wrong in this regard. the Court responds to the request that red flag, if knowledge does not apply to "general" knowledge of the offense, then it is superfluous to point out that not true:



The difference between the actual knowledge of the red flag and is therefore not between general and specific knowledge, but from a subjective and an objective criterion. In other words, by providing actual notice depends on whether the actual supplier or "subjectively" aware of the particular violation, while providing turn red flag if the supplier was subjectively aware of facts that would have made a specific offense "objectively" obvious to a reasonable person. The red flag available, because it incorporates an objective standard, which has not been devoured by providing information under our true construction of § 512 (c) safely. These two provisions are self-employment, and they apply only to specific cases of violation.



In other words, it is possible to prove that there are red flags, but they should be red flags for violations of

specific elements

, not knowing that there is no offense in general. This is a good decision and make sense. accept the interpretation of Viacom would have effectively killed much of the DMCA. interpretation of YouTube (now supported by the district and appellate court) maintains the tolerances of the DMCA in the existence.

said, the court indicates that the district court may have erred in granting summary judgment on this point. In this case, the court speaks specifically on the actions of YouTube, Viacom, saying that at least raises enough questions that it is possible to argue that YouTube, in fact, aware of
aa specific

counterfeiting . In other words, the court agrees to the big picture interpretation by the district court. This does not mean that the court considers that YouTube violates the DMCA - that Viacom, at least raised questions that should be adequately treated by a jury in a trial, rather than decided at the summary judgment stage. So, the case will go to the District Court to be heard on this issue.
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