opinion

Decision May Signal Change For Copyright Law

Earlier this month, the 2nd U.S. Circuit Court of Appeals rendered what may be a crucial decision for the future of the Digital Millennium Copyright Act in Viacom vs. YouTube. While the decision sent much of the case back to the New York trial court for more litigation, many portions of the 2nd Circuit’s decision, concerning the knowledge required to find copyright infringement, may have profound consequences for useruploaded sites like tube sites and file lockers, and those whose content ends up on them.

The DMCA is a portion of the Copyright Act that Congress enacted to protect compliant sites from liability for copyright infringement committed by its users. It has allowed message boards, blogs and other user-generated content services to flourish. Whether many of these services comply with the DMCA, though, has been a subject of heated debate and litigation.

Although the trend for tube sites over the last several years has been to comply with the DMCA and license content, the standard for complying with the DMCA will likely increase with this decision.

Most significantly in the Viacom decision, the 2nd Circuit vacated the U.S. Distict Court in New York’s 2010 order finding that YouTube needed to have item-specific actual knowledge of infringement in order to have the “right and ability” to control infringing content.

By holding that less than item-specific knowledge of infringement could make a site operator liable for copyright infringement, the 2nd Circuit opened the door for site operators who generally know that infringement occurs on their site, but do not know specifically what files are infringing, to be held liable for copyright infringement.

However, the 2nd Circuit also signaled that site operators will need to have some knowledge of infringement to be held liable for infringement, even if it is not item-specific knowledge.

The court disagreed with Viacom’s argument that the “right and ability” to control infringing material under the DMCA was continuous with the common law definition of the term, which requires only the literal right and ability to control infringing content.

Instead, the appeals court found that the “right and ability” to control infringing material under the DMCA requires more than the mere ability to remove or block access to materials on the defendant’s website.

It is unclear how much circumstantial knowledge of infringement above and beyond the bare right and ability to control infringing content – often referred to as “red flag knowledge” – will be required for site operators to be liable for copyright infringement. All that is known at this point, though, is that it will not require item-specific knowledge.

The 2nd Circuit declined to define what level of knowledge is needed, leaving the issue to be determined by the U.S. Distict Court in New York.

The 2nd Circuit clarified two other issues that are of particular concern to tube site operators and rights holders who may wish to sue them. The court found YouTube’s repeat infringer policy and other software tools used to avoid the posting of infringing content, such as content fingerprinting technology, were not sufficient to strip the site of its DMCA protections.

The DMCA conditions its protections on sites having and implementing a repeat infringer termination policy, so that serial copyright infringers are banished from the service. Because the 2nd Circuit remanded a substantial portion of the case to the U.S. Distict Court in New York, the Viacom case is still far from done.

For the time being, however, one of the leading decisions suggesting that user-generated content service operators could not be liable for copyright infringement without item-specific knowledge of infringement has been vacated.

Although the trend for tube sites over the last several years has been to comply with the DMCA and license content, the standard for complying with the DMCA will likely increase with this decision.

Simultaneously, content owners who seek to hold sites liable for infringement may have a means to do so if they can show service operators had some knowledge of infringement — even if it was not item-specific.

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

Breaking Down HB 805 and How it Affects the Adult Industry

North Carolina House Bill 805 was enacted July 29, after the state legislature overrode Governor Josh Stein’s veto. The provisions that relate to the adult industry, imposing requirements for age verification, consent and content removal, are scheduled to become effective Dec. 1. Platforms have until then to update their policies and systems to comply with the new regulations.

Corey D. Silverstein ·
opinion

Staying Compliant With Payment Standards Across Europe and Australia

So, you’ve got your eye on international growth. Smart move. No matter where adult-industry merchants operate, however, one requirement remains consistent: regulatory compliance. This isn’t just a legal checkbox — it’s a critical component of keeping payments flowing and business operations intact.

Jonathan Corona ·
opinion

How to Avoid Copyright Pitfalls When Using Music in Adult Content

When creating an adult video, bringing your vision to life often means assembling just the right ingredients — including the right music. However, adding music to adult content can raise complex legal and ethical issues.

Lawrence G. Walters ·
opinion

New Visa Rules Adult Merchants Need to Know

In December 2024, I shared an update on the upcoming rollout of Visa’s Acquirer Monitoring Program, also known as VAMP. The final version went into effect in June, and enforcement will begin in October. With just a month to go, now is the time to review what’s changing and how to stay compliant.

Cathy Beardsley ·
opinion

WIA Profile: Lainie Speiser

With her fiery red hair and a laugh that practically hugs you, Lainie Speiser is impossible to miss. Having repped some of adult’s biggest stars during her 30-plus years in the business, the veteran publicist is also a treasure trove of tales dating back to the days when print was king and social media not even a glimmer in the industry’s eye.

Women in Adult ·
opinion

Fighting Back Against AI-Fueled Fake Takedown Notices

The digital landscape is increasingly being shaped by artificial intelligence, and while AI offers immense potential, it’s also being weaponized. One disturbing trend that directly impacts adult businesses is AI-powered “DMCA takedown services” generating a flood of fraudulent Digital Millennium Copyright Act (DMCA) notices.

Corey D. Silverstein ·
opinion

Building Seamless Checkout Flows for High-Risk Merchants

For high-risk merchants such as adult businesses, crypto payments are no longer just a backup plan — they’re fast becoming a first choice. More and more businesses are embracing Bitcoin and other digital currencies for consumer transactions.

Jonathan Corona ·
opinion

What the New SCOTUS Ruling Means for AV Laws and Free Speech

On June 27, 2025, the United States Supreme Court handed down its landmark decision in Free Speech Coalition v. Paxton, upholding Texas’ age verification law in the face of a constitutional challenge and setting a new precedent that bolsters similar laws around the country.

Lawrence G. Walters ·
opinion

What You Need to Know Before Relocating Your Adult Business Abroad

Over the last several months, a noticeable trend has emerged: several of our U.S.-based merchants have decided to “pick up shop” and relocate to European countries. On the surface, this sounds idyllic. I imagine some of my favorite clients sipping coffee or wine at sidewalk cafés, embracing a slower pace of life.

Cathy Beardsley ·
profile

WIA Profile: Salima

When Salima first entered the adult space in her mid-20s, becoming a power player wasn’t even on her radar. She was simply looking to learn. Over the years, however, her instinct for strategy, trust in her teams and commitment to creator-first innovation led her from the trade show floor to the executive suite.

Women in Adult ·
Show More