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In Viacom v. YouTube, the Second Circuit confirmed that willful blindness may substitute for actual knowledge under the statutory safe harbor from contributory copyright infringement granted to Online Service Providers (“OSPs”) under Section 512 of the Digital Millennium Copyright Act (the “DMCA”). An examination of precedent reveals that plaintiffs often attempt to argue that the defendant OSP was willfully blind to generalized infringement on its website. Because liability under the DMCA’s safe harbor provision requires knowledge of specific instances of infringement, the Second Circuit’s acceptance of the doctrine without further clarification has caused confusion in the intellectual property community. This Note questions whether the willful blindness doctrine fits within the special statutory scheme crafted by the DMCA in an age of ubiquitous user-generated content.
In response, this Note argues that willful blindness––to the extent that it is possible to demonstrate under the specificity requirements of the DMCA––has already been accounted for in the statutory language. Further, arguments submitted by plaintiffs with regard to OSPs’ general policies of willful blindness must be considered in the light of inducement liability, which may fall outside the contemplation of the safe harbor. This is so for three reasons. First, legislative history supports an interpretation of red flag knowledge that resolves the problem of willful blindness under the DMCA. Second, the use of willful blindness in copyright law and under the DMCA must avoid imposing an affirmative duty to monitor, and the judiciary’s use of common law doctrine risks contravening this provision. Third, the DMCA created a statutory balance of interests that should not be disturbed, particularly when an OSP’s actual knowledge of infringement cannot be shown. This Note concludes with the suggestion that general policies tending toward willful blindness may be used as evidence of inducement liability, but that for the purposes of the DMCA safe harbor in litigation, red flag knowledge is equivalent to willful blindness. The judiciary has a burden to clarify the appropriate use of the doctrine.