YouTube enjoys safe-harbour protection despite not removing further infringing content, says US Court of Appeals
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Söğüt Atilla-Aydın
Jan 22, 2026, 4:25:01 PM (4 days ago) Jan 22
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Home / Athos v YouTube / copyright / DMCA / safe harbour / Söğüt Atilla-Aydın / US / YouTube enjoys safe-harbour protection despite not removing further infringing content, says US Court of Appeals
YouTube enjoys safe-harbour protection despite not removing further infringing content, says US Court of Appeals
On 7 January, the US Court of Appeals for the Eleventh Circuit held that YouTube enjoys the safe-harbour protection under 17 USC s. 512(c). Although YouTube removed the content for which Athos Overseas Ltd (claimant) had submitted a takedown request, it still alleged that YouTube was aware and had actual knowledge of additional infringing content and, by not removing it, YouTube was disqualified from the safe-harbour protection.
The on-going problem for the claimant was in relation to the remaining infringing content YouTube had on its website. According to Athos, with the takedown request, as well as the specific “technologies and functionalities” the website has, the defendant had either actual (s. 512(c)(1)(A)(i)) or “red flag” (s. 512(c)(1)(A)(ii)) knowledge of additional infringing videos but chose to be wilfully blind to such material. The claimant further alleged that YouTube is deriving a direct financial benefit from the infringing content uploaded to its website (s. 512(c)(1)(B)). Taken all together, Athos contended that these should prevent YouTube from qualifying for the Digital Millenium Copyright Act’s safe-harbour protection.
A review of Congress’s intent in introducing the ‘notice-and-takedown regime’ under s. 512(c) makes it apparent that YouTube did not act in violation of the relevant section: If the aim is to provide an efficient method of dealing with copyright infringing content on online platforms, placing the burden on those platforms alone by requiring them to monitor each user’s actions would clearly not be the efficient way. Furthermore, if Congress considers this regime as a “compromise” between copyright holders and platforms providing “valuable Internet services to public”, requiring these platforms to do all the heavy lifting significantly distorts the balanced approach Congress attempted to ensure (see pp. 5-6 of the judgment).
Having reiterated that, to be entitled to safe-harbour protection, YouTube does not have an ex officio duty to investigate whether there exists infringing content on its website, the court was then required to assess whether the defendant needed to have administered the operation of its copyright management tools after being made aware of one infringing content via the claimant’s takedown request. According to Athos, by locating one specific infringing content, and thereby its video-hash, YouTube was able to locate – and thus, needed to remove – additional infringing content. This led the court to discuss the actual and red flag knowledge standards and whether the specificity requirement applies to the latter.
Although it is clear from the language of s. 512(c)(1)(A)(i) that, if the service provider has actual, subjective knowledge of a specific infringing content on its platform it will not be able to benefit from the safe-harbour protection, s. 512(c)(1)(A)(ii) seems to be silent on whether the same level of specificity is needed for the red-flag knowledge. However, as held by both the Second and Ninth Circuits in earlier cases, merely being vaguely or generally aware of the fact that infringing actions do take place on a service provider’s website, does not, in itself, prevent the provider from enjoying the safe-harbour protection. Having said, there is significant criticism against this, arising from the word choices of the two subsections (4 Nimmer on Copyright): While subsection i explicitly refers to “the material” (emphasis added), subsection ii merely refers to “infringing activity”, potentially making the protection unavailable where the service provider is generally aware of the existence of infringing content on its platform.
However, the court held that this linguistic ambiguity is easily resolved by subsection iii which requires the expeditious removal of the material upon either receiving actual knowledge of it or being made aware of an infringing activity in relation to it. Accordingly, the court concluded that merely identifying one infringing content in a takedown request cannot place a burden on YouTube to investigate whether further infringing activity is taking place on its website and take necessary actions. Holding a contrary view would not only distort the aims of the safe-harbour protection as demonstrated above, but also would cause a significant inconsistency. If only actual knowledge about a specific infringing content, rather than the existence of infringing materials generally, can disqualify a service provider from this protection, a vaguer consciousness of infringement should a fortiori relate to a specific content in order for the protection to cease.
A closer reading of the relevant section demonstrates, on the one hand, that it is essentially having knowledge of an infringing material but nevertheless not removing it from the platform that disqualifies a service provider from safe-harbour protection. Subsection ii, on the other hand, serves to compromise with copyright holders by also disposing of service providers’ protection in circumstances where they could reasonably have known about that specific material. While primary copyright infringement is a strict liability tort, where the service providers do not commit the infringing act themselves, they should only be held responsible for the actions that can reasonably be expected from them, i.e., removing infringing content when they are made aware of it. It would therefore not be justifiable to interpret s. 512(c) in a way that leads to any other conclusion as it would practically render the safe-harbour protection meaningless for the very platforms, such as YouTube and Amazon, for which it was introduced in the first place. [Merpel: I’m on my way to check if YouTube has an infringing copy of me…]
Background
The claimant is a company owning copyright to numerous Mexican and Latin American films. After seeing its films posted on YouTube without authorisation, it submitted a takedown request which was taken into consideration by YouTube and the infringing content specified in the request was removed.The on-going problem for the claimant was in relation to the remaining infringing content YouTube had on its website. According to Athos, with the takedown request, as well as the specific “technologies and functionalities” the website has, the defendant had either actual (s. 512(c)(1)(A)(i)) or “red flag” (s. 512(c)(1)(A)(ii)) knowledge of additional infringing videos but chose to be wilfully blind to such material. The claimant further alleged that YouTube is deriving a direct financial benefit from the infringing content uploaded to its website (s. 512(c)(1)(B)). Taken all together, Athos contended that these should prevent YouTube from qualifying for the Digital Millenium Copyright Act’s safe-harbour protection.
YouTube as a safe harbour
Despite the claimant’s assertions, there was no evidence suggesting that YouTube monitors automatically or universally each video uploaded to its website or that its hash-matching tools perform legal analyses of whether identified video-hash matches constitute copyright infringement (see pp. 8-16 of the judgment for further details on how these technologies and functionalities operate). On the contrary, YouTube submitted evidence that all its tools produced for copyright management aim to make users aware of potential matches (i.e., potentially infringing content uploaded to YouTube) and let them decide whether they wish to submit takedown requests or not. In other words, it was highly clear for the court that YouTube is not, in any way, overseeing the activities of each user through any of its copyright management tools. This lack of control of any infringing activity, first and foremost, allowed the court to dismiss the claimant’s allegation that YouTube should be denied safe-harbour protection under s. 512(c)(1)(B).A review of Congress’s intent in introducing the ‘notice-and-takedown regime’ under s. 512(c) makes it apparent that YouTube did not act in violation of the relevant section: If the aim is to provide an efficient method of dealing with copyright infringing content on online platforms, placing the burden on those platforms alone by requiring them to monitor each user’s actions would clearly not be the efficient way. Furthermore, if Congress considers this regime as a “compromise” between copyright holders and platforms providing “valuable Internet services to public”, requiring these platforms to do all the heavy lifting significantly distorts the balanced approach Congress attempted to ensure (see pp. 5-6 of the judgment).
Having reiterated that, to be entitled to safe-harbour protection, YouTube does not have an ex officio duty to investigate whether there exists infringing content on its website, the court was then required to assess whether the defendant needed to have administered the operation of its copyright management tools after being made aware of one infringing content via the claimant’s takedown request. According to Athos, by locating one specific infringing content, and thereby its video-hash, YouTube was able to locate – and thus, needed to remove – additional infringing content. This led the court to discuss the actual and red flag knowledge standards and whether the specificity requirement applies to the latter.
Although it is clear from the language of s. 512(c)(1)(A)(i) that, if the service provider has actual, subjective knowledge of a specific infringing content on its platform it will not be able to benefit from the safe-harbour protection, s. 512(c)(1)(A)(ii) seems to be silent on whether the same level of specificity is needed for the red-flag knowledge. However, as held by both the Second and Ninth Circuits in earlier cases, merely being vaguely or generally aware of the fact that infringing actions do take place on a service provider’s website, does not, in itself, prevent the provider from enjoying the safe-harbour protection. Having said, there is significant criticism against this, arising from the word choices of the two subsections (4 Nimmer on Copyright): While subsection i explicitly refers to “the material” (emphasis added), subsection ii merely refers to “infringing activity”, potentially making the protection unavailable where the service provider is generally aware of the existence of infringing content on its platform.
However, the court held that this linguistic ambiguity is easily resolved by subsection iii which requires the expeditious removal of the material upon either receiving actual knowledge of it or being made aware of an infringing activity in relation to it. Accordingly, the court concluded that merely identifying one infringing content in a takedown request cannot place a burden on YouTube to investigate whether further infringing activity is taking place on its website and take necessary actions. Holding a contrary view would not only distort the aims of the safe-harbour protection as demonstrated above, but also would cause a significant inconsistency. If only actual knowledge about a specific infringing content, rather than the existence of infringing materials generally, can disqualify a service provider from this protection, a vaguer consciousness of infringement should a fortiori relate to a specific content in order for the protection to cease.
A closer reading of the relevant section demonstrates, on the one hand, that it is essentially having knowledge of an infringing material but nevertheless not removing it from the platform that disqualifies a service provider from safe-harbour protection. Subsection ii, on the other hand, serves to compromise with copyright holders by also disposing of service providers’ protection in circumstances where they could reasonably have known about that specific material. While primary copyright infringement is a strict liability tort, where the service providers do not commit the infringing act themselves, they should only be held responsible for the actions that can reasonably be expected from them, i.e., removing infringing content when they are made aware of it. It would therefore not be justifiable to interpret s. 512(c) in a way that leads to any other conclusion as it would practically render the safe-harbour protection meaningless for the very platforms, such as YouTube and Amazon, for which it was introduced in the first place. [Merpel: I’m on my way to check if YouTube has an infringing copy of me…]
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