Capitol Records' lawsuit against Vimeo, running in federal court since 2009, raised important and unsettled questions concerning the scope of safe harbors for online intermediaries under the Digital Millennium Copyright Act (17 U.S.C. § 512)—questions remaining in the wake of the Second Circuit's landmark decision in Viacom v. YouTube (2012). Three issues were in play in this case: (1) whether the safe harbors—which are a creature of federal copyright law—may be raised as a defense to allegations of infringement involving pre-1972 sound recordings, which are not within the scope of federal copyright law; (2) whether a service provider can be charged with “red flag” knowledge of infringement if its employee views a video containing all or almost all of a popular sound recording; and (3) whether Vimeo showed “willful blindness” to its users’ infringements and was thereby disqualified from the safe harbors.
(3) Willful Blindness and the No-Duty-to-Monitor Rule
Appellate courts have considered the interaction between the DMCA safe harbors and the common law doctrine of willful blindness in two previous cases: In re Aimster Copyright Litigation (6th Circuit, 2003) and Viacom. Citing In re Aimster, the Second Circuit held in Viacom that a plaintiff may prove that a provider had potentially disqualifying knowledge of its users’ infringements through a showing that the provider was willfully blind to those infringements, meaning that the provider made a “deliberate effort to avoid guilty knowledge” of them.
YouTube argued in Viacom that Congress abrogated the doctrine of willful blindness in the DMCA by including a provision—section 512(m)—that absolved service providers of any duty to affirmatively monitor their services for infringing activity. The court in Viacom was only partially sympathetic to YouTube's argument, holding that section 512(m) limits but does not completely abrogate the common law doctrine. It held that “the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA.” The Viacom court did not have an opportunity, however, to consider what “appropriate circumstances” might be. This case gave the Second Circuit that opportunity.
The tension between willful blindness doctrine and the no-duty-to-monitor rule in section 512(m) is quickly apparent. Resolving that tension necessitates tricky line drawing between an innocent lack of knowledge that is wholly permissible under the DMCA (because of section 512(m)) and a guilty lack of knowledge that can disqualify a provider from safe harbor. The salient question with respect to willful blindness under the DMCA is this: What is the difference between a provider's not knowing because it didn’t go out of its way to find out and not knowing because it did go out of its way not to find out? The court answered that question correctly in this case.
Capitol Records made three arguments for Vimeo’s willful blindness: (1) Vimeo should be held willfully blind because it monitored for infringement of visual content of videos but not audio content; (2) Vimeo’s awareness of facts suggesting a likelihood of infringement gave rise to a duty to investigate further, which it failed to fulfill, thus demonstrating willful blindness; and (3) Vimeo encouraged users to post infringing material and then turned a blind eye to the subsequent presence of that infringing material on its system. Considering the limiting effect of section 512(m) on each of these arguments, the court rejected all of them.
First, the court said, the no-duty-to-monitor rule would mean little if a provider’s voluntary decision to engage in some monitoring were held to trigger a mandatory commitment to engage in wholesale monitoring. As to the second argument, the court was not persuaded that facts suggesting a likelihood of infringement give rise to any investigative duty on the part of a service provider. The duty to remove material in instances involving less than actual knowledge is limited in the statute to the discovery of facts that make infringement objectively obvious (i.e., red flag knowledge); that duty does not arise in situations where facts do no more than raise a suspicion that infringing activity is occurring. The court reasoned that requiring service providers “constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring whenever some level of suspicion was surpassed…would largely undo the value of [section] 512(m).” For that reason, willful blindness doctrine cannot be interpreted to create a more relaxed form of scienter than red flag knowledge. A whiff of suspicion is not enough.
The court was more receptive to the plaintiffs’ third argument. It assumed arguendo that a provider could lose the protection of section 512(m) by adopting a general policy of encouraging users to infringe and then turning a blind eye to the resulting infringements; however, it doubted the plaintiffs’ claim that Vimeo had adopted any such policy. All the evidence showed was that Vimeo’s employees engaged in “a handful of sporadic instances (amongst the millions of posted videos)” in which they encouraged infringement. That alone could not give rise to some kind of blanket waiver of section 512(m).
Moreover, the court said, the sporadic infringements that Vimeo’s employees encouraged were not infringements of the plaintiffs’ copyrights. The court emphasized in Viacom that knowledge under the DMCA (whether actual or red flag) relates to specific instances of infringement at issue in a given case and not to infringement in a general sense. Because willful blindness operates as a proxy for knowledge, it also must be shown under Viacom to relate to specific instances of infringement at issue in the case. Applying that rule, a plaintiff cannot succeed in showing that a provider was willfully blind to infringement of its copyrights (or willfully blind in some general sense) simply by showing that the provider’s employees encouraged the infringement of somebody’s copyrights. Yet that was all the evidence the plaintiffs offered.
In rejecting all of the plaintiffs' arguments for Vimeo's willful blindness, the court made clear in this case that there is a limited scope for the doctrine given the no-duty-to-monitor rule in section 512(m). It left open the question of whether a provider could incur a duty to monitor, despite section 512(m), by adopting a general policy of encouraging infringement. It extended Viacom’s rule concerning specific instances of infringement to claims alleging willful-blindness-as-knowledge under the DMCA. It also suggested that the outcome of its willful blindness analysis might have been different if the plaintiffs could have shown that Vimeo’s employees encouraged users to post infringing material in which the plaintiffs actually owned the copyrights.