Analysis: Decision May Signal Change in 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 user-uploaded 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.

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.

 J. Malcolm DeVoy is an associate at Randazza Legal Group.

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 News

Texas Resumes AV Lawsuit Against Aylo Following SCOTUS Decision

A district court judge in Texas has unfrozen the state’s $1.6 million lawsuit against Aylo for allegedly failing to comply with age verification requirements, Bloomberg Law is reporting.

Nadia Jay Stars in Latest From Brazzers

Nadia Jay stars with Mick Blue in the latest release from Brazzers, titled "Fucking the Bath Voyeur."

Tommy Gunn Reflects on His Legendary Past as He Looks to the Future

Tommy Gunn is wearing an eyepatch. It’s not an homage to the classic "Pirates" porn parody franchise, in which Gunn takes on the Johnny Depp role. The eyepatch is a temporary measure to help him deal with a nerve palsy that came out of nowhere several years ago and affects his vision from time to time. Gunn needs his vision. As one of the adult industry’s longest-serving male stars, he still has plenty to look forward to.

Rocco Siffredi Directs New Rebel Rhyder Showcase

Evil Angel has released Rocco Siffredi’s Rebel Rhyder showcase title, "Rebel Meets Rebel."

JuicyAds Wins Trademark Infringement Case Against Fraudulent Domain

JuicyAds has won its World Intellectual Property Organization (WIPO) case against a website using a similar domain to impersonate the company's site and defraud customers.

Shalina Devine Toplines 'Thr3e #7' From Dorcel

Shalina Devine headlines the latest release from Dorcel, titled "Thr3e #7."

Chloe Amour Headlines 'Unfaithful Betrayal 3' From Bellesa Films

Chloe Amour toplines the third volume of “Unfaithful Betrayal” from Bellesa Films.

Anissa Kate, Jordan Starr Top AEBN for Q2 of 2025

AEBN has published its top-selling stars for the second quarter of 2025, with Anissa Kate landing atop the leaderboard for straight theaters and Jordan Starr heading up the gay rankings.

Misty Addams Makes Her WIFEY Debut

Misty Addams stars with husband Island Boy Brandon and 2024 XMA Europas Male Performer of the Year Christian Clay in the latest release from Vixen Media Group studio imprint WIFEY.

AEBN Reveals Eva Maxim as Top Trans Star for Q2 of 2025

AEBN has published its top trans stars list for the second quarter of 2025, with Eva Maxim landing atop the leaderboard.

Show More