Searching for "Something More": Viacom Interprets the Control Provision of the DMCA § 512(c) Safe Harbor

Abstract

On April 5, 2012, in Viacom International, Inc. v. YouTube, Inc., the U.S. Court of Appeals for the Second Circuit held that 17 U.S.C. § 512(c)(1)(B) requires a service provider to exert “substantial influence” over user activity to show the requisite control necessary to remove it from safe harbor protection. In doing so, the Second Circuit created a circuit split with the U.S. Court of Appeals for the Ninth Circuit regarding the proper interpretation of the § 512(c)(1)(B) control provision. This Comment argues that, unlike the Ninth Circuit, the Second Circuit rendered the statute internally consistent by giving effect to all of § 512(c)’s language. It further contends that the Second Circuit’s holding in Viacom is consistent with the broad policy goals behind Congress’s passage of the Digital Millennium Copyright Act of 1998 and enactment of safe harbor protection for service providers.