DMCA Safe Harbor

[CLIENT] Is Entitled to the DMCA § 512(c) Safe Harbor

Section 512(c) shields a service provider from monetary liability for copyright infringement arising by reason of the storage of material on its system at the direction of a user. [CLIENT] satisfies every element of the safe harbor: it is a qualifying service provider; it adopted and reasonably implemented a repeat-infringer policy and designated a DMCA agent; the material at issue was stored at the direction of users; it expeditiously removed every item identified in a compliant takedown notice; and it lacked both actual and red-flag knowledge of the specific infringements alleged.

Disqualifying knowledge must be specific. The § 512(c) safe harbor “requires knowledge or awareness of specific infringing activity.” Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Actual knowledge asks whether the provider subjectively knew of specific infringement; red-flag knowledge asks whether the provider was subjectively aware of facts that would have made the specific infringement objectively obvious to a reasonable person. And each prong stands on its own: “[b]oth provisions do independent work, and both apply only to specific instances of infringement.” Generalized awareness that infringing material may exist somewhere on a platform is insufficient as a matter of law.

The red-flag standard is exacting. Objective obviousness is measured from the vantage of “an ordinary person—not endowed with specialized knowledge or expertise concerning music or the laws of copyright,” and even an employee’s viewing of a video containing all or virtually all of a recognizable copyrighted song is insufficient, without more, to establish red-flag knowledge. Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016). The copyright owner bears the burden of proving disqualifying knowledge, and § 512(m) forecloses any suggestion that [CLIENT] was obliged to monitor its platform for infringement in the first place.

The other circuits to reach the question agree. Even “merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material” satisfies neither knowledge prong, because the DMCA places the burden of policing infringement “squarely on the owners of the copyright.” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013). Viacom’s specificity requirement now governs in the Eleventh Circuit as well: even the accumulation of adequately addressed takedown requests “cannot amount to red flag knowledge of other infringing activity.” Athos Overseas Limited Corp. v. YouTube, Inc., No. 23-13156 (11th Cir. 2026). [CLIENT]’s practice of promptly removing every item identified in a compliant notice is precisely the conduct these decisions protect.

Nor does § 512(c)(1)(B) strip [CLIENT] of the safe harbor. The right and ability to control infringing activity requires “something more” than the mere ability to remove or block access to material—an ability virtually every service provider possesses. Non-coercive curation—likes, thumbs-ups, and promotion of a small share of videos to a staff-picks channel—comes nowhere near the “substantial influence” over user activities that forfeiture demands. Capitol Records v. Vimeo, 125 F.4th 409 (2d Cir. 2025). [CLIENT]’s ordinary moderation tools fall well short of that threshold. Because the material at issue was stored at the direction of users, [CLIENT] lacked actual or red-flag knowledge of the specific infringements alleged, and [CLIENT] exercised no substantial influence over user content, it is entitled to the § 512(c) safe harbor.