THE ENTERTAINMENT, ARTS and SPORTS LAW BLOG

Second Circuit Interprets DMCA Safe Harbor Provision in Viacom International v. YouTube

by Brendan Mee
www.bmeelaw.com

On April 5, 2012, the Court of Appeals for the Second Circuit vacated a summary judgment order from the Southern District for the State of New York in the closely watched Viacom case. (Viacom International v. YouTube, No. 10-3270, 2012 WL 1130851 (2d Cir. Apr. 5, 2012)). The suit now returns to the District Court on remand for fact finding as to whether the defendants had "actual knowledge or awareness" of specific acts of copyright infringement, and whether the defendants made "deliberate effort to avoid guilty knowledge" of infringement (i.e., were willfully blind to specific acts of infringement). (Id. at *34). However, damages may only be recovered where the defendants are shown to have knowledge of specific acts of infringement. Thus, the massive damages award sought by the plaintiffs at the outset of the suit is no longer on the table.

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About Elissa

Elissa D. Hecker practices in the entertainment and business fields. Her practice focuses on copyright, trademark and business law.  Her clients encompass a large spectrum of the entertainment world. In addition to her private practice, Elissa edited the books Entertainment Litigation - Know the Issues and Avoid the Courtroom and Counseling Content Providers in the Digital Age.

Elissa is Past Chair of the Entertainment, Arts and Sports Law (EASL) Section of the New York State Bar Association, Editor of the EASL Journal, member of the Editorial Board of the NYSBA Bar Journal, and Co-Chair and founder of the EASL Pro Bono Committee. She is also editor of the EASL Blog. Elissa is a frequent author, lecturer and panelist, a member of the Copyright Society of the U.S.A. (CSUSA), a member of the Board of Editors for The Journal of the CSUSA, and the CSUSA’s Newsletter Editor.

Elissa was selected as a 2011 New York Super Lawyers Rising Star. She was also the inaugural recipient of the Copyright Society of the U.S.A.'s 2011 Award for Excellent Service and received the 2005 New York State Bar Association's Outstanding Young Lawyer Award. She was previously Associate Counsel with The Harry Fox Agency, Inc. and its parent company, the National Music Publishers Association, Inc.

Practice Areas include:

• Entertainment Law
• Copyright
• Trademark
• Intellectual Property
• Television
• Production
• Music
• Dance
• Photography
• Internet
• Media
• Business
• Corporate issues
• Contracts
• Publishing

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