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This is pretty big breaking news from New York.  After last week’s oral argument in Viacom v. YouTube (2d. Cir. 10-3270), the Second Circuit has reportedly asked YouTube two questions regardings its affirmative defense under 17 U.S.C. § 512(c)(1) (the DMCA) to Viacom’s copyright infringement claims.

According to Twitter GC @amac, from whom I got the story, the Second Circuit has asked:

  1. whether and how the red-flag knowledge provision [§ 512(c)(1)(A)(ii)] would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and
  2. whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).


The timing for this could have been better though; I submitted an article on the proceedings at 2.00am this morning, which will now have to be amended.  Oh well, at least these were the two issues I had thought were going to be difficult for YouTube.

No sign of the questions having been published online yet.  As soon as they are I’ll post additional details here.


UPDATE:  The Order is now available below, courtesy of Justia.  The questions are as stated above.  YouTube has until November 1, 2011, to provide its brief;  Viacom and the FA must respond by November 8, 2011.  The storage question was pretty much skipped over in oral arguments, so I’m pleased it’s being looked at in more detail now (even if the limited scope of the question means the Second Circuit is already with YouTube regarding all acts other than syndication).  I thought Viacom’s points about knowledge (i.e. YouTube’s interpretation renders neighboring parts of the statute redundant, so must be wrong) had a lot of force in the briefs and at the hearing, but I’m sure YouTube will have a good response already prepared.  Looking forward to reading them next week…

Second Circuit Order for Further Argument in Viacom v. YouTube