Opinion · Court of Appeals for the Eleventh Circuit
Athos Overseas Limited Corp. v. YouTube, Inc.
Athos Overseas Ltd. v. YouTube, Inc., No. 23-13156, UP11237162 (11th Cir. Jan. 7, 2026)
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 2026-01-07
- Topic
- litigation
USCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 1 of 29 FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13156 ____________________ ATHOS OVERSEAS LIMITED CORP., Plaintiff-Appellant, versus YOUTUBE, INC., YOUTUBE, LLC., GOOGLE, LLC., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:21-cv-21698-DPG ____________________ USCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 2 of 29 2 Opinion of the Court 23-13156 Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir- cuit Judges. JORDAN, Circuit Judge: This case concerns the application of one of the safe-harbor provisions of the 1998 Digital Millenium Copyright Act, 17 U.S.C. § 512(c), in the modern digital age. Athos Overseas Limited, which owns the copyright to many classic Mexican and Latin American films, sued YouTube, Inc., YouTube, LLC, and YouTube’s owner, Google, LLC (collectively “YouTube”), alleging copyright infringement based on the unau- thorized posting of its copyrighted material on the YouTube web- site, an internet platform where users can upload video content for public viewing by visitors of the site. Following discovery, Athos filed a motion for partial summary judgment, and YouTube filed its own motion for summary judgment.
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USCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 1 of 29
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13156
____________________
ATHOS OVERSEAS LIMITED CORP.,
Plaintiff-Appellant,
versus
YOUTUBE, INC.,
YOUTUBE, LLC.,
GOOGLE, LLC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-21698-DPG
____________________
USCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 2 of 29
2 Opinion of the Court 23-13156
Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir-
cuit Judges.
JORDAN, Circuit Judge:
This case concerns the application of one of the safe-harbor
provisions of the 1998 Digital Millenium Copyright Act, 17 U.S.C. § 512
(c), in the modern digital age.
Athos Overseas Limited, which owns the copyright to many
classic Mexican and Latin American films, sued YouTube, Inc.,
YouTube, LLC, and YouTube’s owner, Google, LLC (collectively
“YouTube”), alleging copyright infringement based on the unau-
thorized posting of its copyrighted material on the YouTube web-
site, an internet platform where users can upload video content for
public viewing by visitors of the site. Following discovery, Athos
filed a motion for partial summary judgment, and YouTube filed
its own motion for summary judgment. The magistrate judge is-
sued a report recommending that Athos’ motion be denied and
that YouTube’s motion be granted based on § 512(c), a safe-harbor
provision of the DMCA. The district court adopted the report and
recommendation and entered final judgment in favor of YouTube.
This appeal followed.
After review of the record and the parties’ briefs, and with
the benefit of oral argument, we affirm. We agree with the district
court that on this record YouTube was protected by § 512(c).
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23-13156 Opinion of the Court 3
I
In 1998 Congress, foreseeing the significance the internet
would play in the coming millennium, enacted the DMCA “to up-
date domestic copyright law for the digital age.” Viacom Int’l Inc. v.
YouTube, Inc., 676 F.3d 19, 26
(2d Cir. 2012). The DMCA was meant
to “provide certainty for copyright owners and Internet service
providers with respect to copyright infringement liability” by cre-
ating protections from copyright liability under certain circum-
stances and by establishing a regime through which copyright own-
ers could reliably enforce their rights. See S. Rep. No. 105-190, at 2
(1998). The DMCA sought to balance the interests of copyright
owners and those of the nation by ensuring “that the efficiency of
the Internet [would] continue to improve and that the variety and
quality of services on the Internet [would] expand.” Id.
See also 4
Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 12B.01[C][1] at 12B-28 (2020) (“To balance these divergent inter-
ests, the [DMCA] as enacted embodies disparate forms of protec-
tion.”).
Congress achieved this balance in part by establishing spe-
cific protections for internet service providers. The DMCA safe-
harbor provision at issue here applies to “information residing on
systems or networks at direction of users” and reads as follows:
(1) In general.—A service provider shall not be liable
for monetary relief, or, except as provided in subsec-
tion (j), for injunctive or other equitable relief, for in-
fringement of copyright by reason of the storage at
the direction of a user of material that resides on a
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4 Opinion of the Court 23-13156
system or network controlled or operated by or for
the service provider, if the service provider—
(A)(i) does not have actual knowledge that the
material or an activity using the material on the sys-
tem or network is infringing;
(ii) in the absence of such actual knowledge, is
not aware of facts or circumstances from which in-
fringing activity is apparent; or
(iii) upon obtaining such knowledge or aware-
ness, acts expeditiously to remove, or disable access
to, the material;
(B) does not receive a financial benefit directly
attributable to the infringing activity, in a case in
which the service provider has the right and ability to
control such activity; and
(C) upon notification of claimed infringement
as described in paragraph (3), responds expeditiously
to remove, or disable access to, the material that is
claimed to be infringing or to be the subject of infring-
ing activity.
17 U.S.C. § 512
(c)(1). Significantly, the safe-harbor provisions of
the DMCA, including § 512(c), are not conditioned on “a service
provider monitoring its service or affirmatively seeking facts indi-
cating infringing activity[.]” 17 U.S.C. § 512
(m)(1).
Through § 512(c)(1)(C), Congress also established a “notice
and takedown” regime for the benefit of copyright owners on the
other side of the scales. See S. Rep. No. 105-190, at 45. To be effec-
tive, a copyright owner’s takedown request must include
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23-13156 Opinion of the Court 5
“[i]dentification of the material that is claimed to be infringing . . .
and information reasonably sufficient to permit the service pro-
vider to locate the material.” § 512(c)(3)(A)(iii). See Lenz v. Universal
Music Corp., 815 F.3d 1145, 1151
(9th Cir. 2016) (explaining that a
takedown notification must include “identification of the copy-
righted work, identification of the allegedly infringing material,
and, critically, a statement that the copyright holder believes in
good faith the infringing material is ‘not authorized by the copy-
right owner, its agents, or the law’”); Perfect 10, Inc. v. CCBill LLC,
488 F.3d 1102, 1112
(9th Cir. 2007) (same). 1
Under this notice-and-takedown regime service providers
are at risk of losing the protection of the safe-harbor provision
should they fail to adequately respond to a claim of copyright in-
fringement. See § 512(c)(1)(C). Service providers may also lose safe-
harbor protection if they neglect to take down infringing material
they have actual or red flag knowledge of, regardless of whether
any takedown request has been submitted. See § 512(c)(1)(A)(i)-(iii).
Congress intended the notice-and-takedown regime as “a
formalization and refinement of a cooperative process that ha[d]
been employed to deal efficiently with network-based copyright in-
fringement.” S. Rep. No. 105-190, at 45. It has been described as “a
1 Some copyright owners have complained that the DMCA’s notice-and-
takedown regime “more closely resemble[s] the game of Whack-A-Mole than
an efficacious tool for relief.” 4 Nimmer on Copyright § 12B.01[C][5] at 12B-
32.1. Needless to say, we apply § 512(c) as it was written, not as it could have
been written.
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6 Opinion of the Court 23-13156
‘compromise’ between protecting copyright owners and ‘insu-
lat[ing] service providers from liability for infringements of which
they are unaware . . . so as to make it commercially feasible for
them to provide valuable Internet services to the public.’” Capitol
Recs., LLC v. Vimeo, Inc., 125 F.4th 409
, 413 (2nd Cir. 2025) (Vimeo
II) (citing and quoting Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 82
(2d Cir. 2016) (Vimeo I)).
To qualify for safe-harbor protection under § 512(c), a ser-
vice provider like YouTube (1) must be a covered service provider
under § 512(k)(1); (2) must adopt and reasonably implement (and
inform subscribers and account holders of) a policy providing for
termination of those who are repeat infringers as set out in
§ 512(i)(1)(A); (3) must expeditiously remove any infringing mate-
rial it becomes aware of on its website, whether through its own
actual or red flag knowledge or through receipt of a valid takedown
notice; and (4) must not directly financially benefit from infringing
material on the website if it has the right and ability to control that
material. See § 512(c)(1); Vimeo II, 125 F.4th at 413–14; Perfect 10, 488 F.3d at 1109
.
The safe-harbor set out in § 512(c) is “properly seen as an
affirmative defense.” Vimeo I, 826 F.3d at 94
. Athos acknowledges
that YouTube is a service provider generally covered by the
§ 512(c) safe-harbor provision. And it does not claim that YouTube
does not expeditiously remove the specific content for which a cop-
yright owner sends an effective DMCA takedown request. Instead,
Athos attacks YouTube’s protection under § 512(c) on two fronts.
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23-13156 Opinion of the Court 7
First, Athos maintains that YouTube has actual or red flag
knowledge of additional infringing material on its website or is oth-
erwise being willfully blind to such material, and that material is
not being expeditiously removed. Second, Athos asserts that
YouTube derives a direct financial benefit from infringing material
posted to its website while also having the right and ability to con-
trol that material. Athos’ arguments are in part based on certain
factual assertions relating to particular technologies and function-
alities of the YouTube website. Athos believes that these technol-
ogies and functionalities deliver sufficient knowledge of infringing
material to YouTube and facilitate an ability to control that mate-
rial on the site such that YouTube should lose its § 512(c) safe-har-
bor protection.
II
We review a district court’s grant of summary judgment de
novo, viewing the facts and making inferences in favor of the non-
moving party. See Smith v. Owens, 848 F.3d 975, 978
(11th Cir. 2017).
Summary judgment under Rule 56 is appropriate where no mate-
rial facts are in genuine dispute and one party is entitled to judg-
ment as a matter of law. See id.
An issue of fact is material if it has
the potential to affect the resolution of the case under the applica-
ble legal principles. See Harrison v. Culliver, 746 F.3d 1288
, 1297–98
(11th Cir. 2014). And a fact is genuinely in dispute if, taking the
record as a whole, a rational trier of fact could find in favor of the
nonmoving party. See id. at 1298
.
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8 Opinion of the Court 23-13156
Athos challenges only the district court’s grant of YouTube’s
motion for summary judgment and not the denial of its own mo-
tion for partial summary judgment. As a result, we set out the facts,
and draw all reasonable inferences, in favor of Athos. Yet, as we
explain, some of Athos’ factual assertions are not supported by the
record.
III
We start by describing the specific technologies and func-
tionalities that are at issue here—what they are, what they do and
don’t do, and how they do it—before we wade into application of
§ 512(c) of the DMCA. See, e.g., Vimeo II, 125 F.4th at 416 (explain-
ing Vimeo’s curation and moderation functionalities before evalu-
ating issues relating to equivalent red flag knowledge and right and
ability to control). That description is critical because the parties
characterize the relevant technologies and functionalities differ-
ently in their briefs.
Two suites of technologies and functionalities are at issue
here. The first suite encompasses the functionalities surrounding
YouTube’s moderation and curation of the content on the
YouTube website, which are relevant to whether YouTube has the
right and ability to control infringing material. The second suite is
made up of YouTube’s video-hashing technology as well as the
multiple video-hash-matching technologies housed within its vari-
ous copyright management tools.
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A
The first suite of functionalities relates to the ability of
YouTube to moderate and curate user uploads to its website.
Athos contends that YouTube exerts substantial amounts of
“control over the users who upload the infringing material, its us-
ers in general and the infringing activity on its platform.” Appel-
lant’s Br. at 48 (citing D.E. 137-3 at 15:1–7, 17:12–25, 79:24–87:25,
119:18–24, 120:24–121:04; D.E. 137-6 at 102:25–103:10, 118:17–
120:09, 132:08–134:21, 191:11–12; D.E. 137-7 at 53:08–57:20). After
careful review of Athos’ record citations, there are only two that
reference YouTube’s ability to control the content on the YouTube
website. See D.E. 137-6 at 132:08–134:21 (explaining how a user can
use the Prevent Copies functionality of YouTube’s copyright web
form to have its system prevent the reupload of exact and near-ex-
act copies of already removed videos); D.E. 137-7 at 53:08–57:03
(discussing YouTube’s ability to suggest videos to users and to auto-
play videos after one video has finished, and confirming that
YouTube can take down any page on its website as well as set its
own policies and procedures for what content can be uploaded and
viewed).
These matters are not in dispute. YouTube does not contest
that its Prevent Copies functionality exists, or that its algorithmic
video curation can suggest and autoplay other videos available on
the site, or that it has the general power to remove content from
the site.
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10 Opinion of the Court 23-13156
B
YouTube currently uses video-hashing technology to create
an identifying chain of characters, i.e., a hash, for each video up-
loaded to its website. The video hashes produced by YouTube’s
technology are used to facilitate video-hash-matching functionali-
ties available through various copyright management tools that
YouTube offers to users. See D.E. 137-6 at 144:16–145:08 (explaining
that there are three different copyright management tools offered
by YouTube to users that rely on some form of hash-matching
technology: (1) Content ID, (2) the Copyright Match Tool, and (3)
the Prevent Copies functionality of its copyright web form).
1
The various hash-matching functionalities are each housed
in different copyright management tools, but they all have the com-
mon capability of comparing a reference video hash to YouTube’s
video-hash database to produce a list of video-hash matches that
can then be processed in some other manner. The primary differ-
ences between the tools for our purposes are the options available
to the user for determining what, if any, next steps should be taken
with respect to the list produced by the video-hash-matching pro-
cess. See D.E. 14-2 (discussing Content ID, which allows the user to
select from various options, including automatic removal, various
monetization settings, or tracking of flagged matches); D.E. 136-3
at 149:14–150:07 (explaining the Prevent Copies functionality,
which can prevent the subsequent upload of exact or near-exact
copies of already removed videos if a user checks the applicable
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23-13156 Opinion of the Court 11
box on a submitted copyright web form); D.E. 136-1 at 18–19 (ex-
plaining the Copyright Match tool, which only presents the user
with the identified matches for the user to then submit takedown
requests for those matches the user believes to be infringing after
its own review). Only the Prevent Copies functionality is available
to all users; the other tools’ availability is based on a user’s
“[d]emonstrated need,” “[a]vailable resources to manage [its] rights
and content,” and “[k]nowledge of YouTube’s copyright system.”
D.E. 14-3 at 2. This is due to YouTube’s concerns for “protecting
against significant disruptions that can result from [these function-
alities’] misuse.” Id.
YouTube offers its copyright management tools for use by
users and does not operate any of them automatically itself be-
cause it is the users, i.e., the copyright owners, who have the best
knowledge of, and access to, their copyright information. The users
must decide what each tool should do with an identified match, as
it is their underlying copyrights that are being protected. In the case
of Content ID, the user has broad and precise powers to direct the
takedown, tracking, or monetization of identified video-hash
matches on a region-by-region basis. Without input from a user
regarding which actions to take in which regions, YouTube has no
way of administering Content ID on the user’s behalf.
Notably, with respect to YouTube’s hash-matching technol-
ogy, it is possible that a video-hash match identified by the hash-
matching process is not actually a violation of the underlying cop-
yright. This can happen, for example, when the use of the
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12 Opinion of the Court 23-13156
copyrighted content generating the match constitutes fair use or
when it is uploaded by the copyright owner, a subsidiary, or a licen-
see. See D.E. 137-6 at 74:24–25 (testimony of Kevin Zhu, a Content
ID product manager: “I don’t think the system has the capacity to
determine potential infringement.”).
There is no evidence in the record that YouTube has any tool
capable of performing a legal evaluation to determine whether an
identified video-hash match is actually infringing on a given copy-
right. And the record indicates that YouTube seeks to avoid mass
removals of legal uses of copyrighted material by its users. As a
result, none of YouTube’s copyright management tools operate au-
tomatically without substantial input and management by the cop-
yright owners, and the most powerful tools are only available to
qualifying users.
YouTube offered Athos the use of its various copyright man-
agement tools, including Content ID, but Athos declined the offer
because it viewed the required user agreement as “monopolistic
and abusive.” Athos chose instead to hire a law firm to manually
locate potential instances of infringement and send individualized
takedown requests to YouTube. Neither Athos nor its counsel ever
used Content ID or the Copyright Match tool to assist in the man-
agement of its copyrights on the YouTube website.
2
According to Athos, the second suite of technologies is
made up of various functionalities that all fall under the umbrella
term Content ID. Athos contends this is a system on the YouTube
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23-13156 Opinion of the Court 13
website that “automatically generates a digital fingerprint of every
video” (what Athos refers to as digital or video fingerprints in its
briefing we refer to as “video hashes”) at the moment it is uploaded
to the YouTube website. See Appellant’s Br. at 9. Athos asserts that
this system “mechanically and instantaneously compares the fin-
gerprint with other fingerprints in the platform for purposes of ob-
taining matches of material that copyright owners have informed
YouTube is copyrighted.” Id. Athos maintains that these function-
alities are run automatically on all videos uploaded to the YouTube
website. See id. at 9–10. As a result, Athos believes that at the mo-
ment YouTube receives a takedown request premised on Athos’
ownership of a given work appearing at a particular location on the
YouTube website, YouTube’s technologies immediately provide
YouTube actual or red flag knowledge of additional infringing ma-
terial in the form of any locatable video-hash matches to the iden-
tified infringing material. See Oral Argument Audio at 12:00–13:47.
For this theory, Athos relies exclusively on its interpretation
of the deposition testimony of YouTube’s representatives. But the
record taken as a whole (and viewed in Athos’ favor) does not sup-
port Athos’ characterization of YouTube’s copyright management
tools. Our review of the record shows that Athos’ factual asser-
tions rely primarily on unsustainable readings of the deposition of
Mr. Zhu, a Content ID product manager. 2
2 We recognize that Mr. Zhu’s deposition, as well as certain portions of Athos’
brief, were sealed pursuant to the parties’ stipulated protective order. See D.E.
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14 Opinion of the Court 23-13156
As an example, in its initial brief Athos says that “[r]emoving
all existing infringing content as opposed to removing clip by clip,
whenever a copyright owner identifies a specific URL, could ‘shut
down the whole site.’” Appellant’s Br. at 11 (citing and quoting
D.E. 137-6 at 200:10–11). When asked about the technical feasibility
of taking down all near-exact hash matches of videos identified by
a URL in a DMCA takedown request, Mr. Zhu stated: “I’m not
even sure if it’s ultimately feasible to do in a way that makes sense.
So I think it’s a little difficult to answer the question because nearly
anything is possible with software. Like, we could shut down the
whole site, you know, potentially, but that doesn’t mean that
would be a good thing to do.” D.E. 137-6 at 199:14–200:12. Mr.
Zhu’s observation offers no support for the factual proposition
Athos attempts to bolster with it—that YouTube refuses to remove
infringing material for fear of shutting down the website.
Athos’ other record citations do not allow a reasonable jury
to find that “YouTube automatically compares each [video] finger-
print to all content in YouTube, as a business policy.” Appellant’s
Br. at 15 (citing D.E. 137-6 at 103:7–10, 118:17–120:08). For in-
stance, in response to questions regarding whether any aspects of
the video upload process on the YouTube website involve human
interaction by YouTube employees, Mr. Zhu stated: “I don’t think
I know—so I’m not personally specifically aware of processes
where a human interacts with a video during that process, but that
60. We quote both carefully to avoid the disclosure of confidential and propri-
etary information.
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23-13156 Opinion of the Court 15
doesn’t necessarily mean it doesn’t exist.” D.E. 137-6 at 120:03–08.
A fuller review of the second record citation and surrounding con-
text reveals that, after first clarifying that “there are some condi-
tions that might determine when exactly would [Content ID] look
for those [hash-matched] videos after the reference file was pro-
vided,” and that YouTube requires Content ID partners to upload
reference files themselves for Content ID to operate, Mr. Zhu ex-
plained that “[w]hen a video is uploaded . . . a fingerprint is gener-
ated, and a fingerprint is also generated by Content ID reference
file, and those fingerprints are compared to each other, as I under-
stand it.” D.E. 137-6 at 100:10–103:10. At no point did Mr. Zhu
state that Content ID operates without a reference file being pro-
vided by the Content ID user. Nor did he suggest that YouTube
operates Content ID universally or automatically as a business pol-
icy without any prior input from a Content ID user.
The record citations that Athos relies on also do not support
the factual proposition that “[t]he purpose of comparing finger-
prints is ensuring YouTube locates and flags infringing content.”
Appellant’s Br. at 16 (citing D.E. 137-6 at 70:17–20, 146:12–147:03).
Mr. Zhu’s first cited deposition excerpt directly contradicts the
proposition Athos asserts. See D.E. 137-6 at 70:17–20 (“The purpose
of the [hash-matching] tool is to show videos that are potential
matches and allow the user to decide whether they want to request
removal of those videos or do something else.”). The second dep-
osition excerpt does nothing to shore up Athos’ unfounded asser-
tion; when Mr. Zhu was asked whether he knows if the different
hash matching copyright management tools YouTube has made
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16 Opinion of the Court 23-13156
available to users all rely on the same hashing technology, he gave
this answer: “I don’t personally know if there are differences or
what differences there might be . . . I’m not the technical expert in
the matching technology itself, so it doesn’t necessarily mean there
aren’t differences.” D.E. 137-6 at 146:12–147:03.
3
In sum, as to curation and moderation technologies, the rec-
ord reflects agreement between the parties that YouTube can algo-
rithmically suggest and auto-play videos, can remove users and vid-
eos from the site, and can set its own guidelines for users and up-
loaded content on the site.
With respect to the hashing technologies, the record does
not support Athos’ factual assertions. YouTube does not run Con-
tent ID (or any of its other copyright management tools) automat-
ically or universally for all videos uploaded to the YouTube website.
Athos, moreover, has offered no evidence that any of YouTube’s
video-hash-matching or other tools have any functionality to per-
form a legal analysis of whether an identified video-hash match
constitutes copyright infringement. In fact, YouTube has pre-
sented unrebutted evidence that all of its copyright management
tools were designed with user input and management in mind be-
cause it would be unfeasible for YouTube to operate the tools by
itself without such input. Athos simply has not identified any ma-
terial facts in dispute.
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23-13156 Opinion of the Court 17
III
According to Athos, once it notifies YouTube of its owner-
ship of a given copyright and identifies a single location (e.g., a
URL) where the copyrighted material appears on the YouTube
website, YouTube then has a video hash sufficient for it to locate
additional infringing material on the site. Athos argues that this
confluence of technologies generates actual or red flag knowledge
of infringement that should result in YouTube being required to
remove any match generated by the hash-matching technologies
or otherwise risk losing its safe-harbor protection under § 512(c) of
the DMCA. Athos is in effect demanding that YouTube be required
to administer the operation of its copyright management tools in a
way that it never has before and in a manner that it did not design
them for, on behalf of and without any input from a user other
than a single DMCA takedown request.
Athos challenges the district court’s reliance on Second and
Ninth Circuit cases considering equivalent issues—Viacom Int’l, Inc.
v. YouTube, Inc., 676 F.3d 19
(2d Cir. 2012), and UMG Recordings, Inc.
v. Shelter Cap. Partners LLC, 718 F.3d 1006
(9th Cir. 2013)—because
it contends that the approach in these cases “disproportionately
protects service providers, disincentivizes the creation of creative
work and diminishes the value of obtaining copyright protection.”
Appellant’s Br. at 27. We are not persuaded.
A
The safe-harbor provision set out in § 512(c) encompasses
both an actual knowledge standard and what has become known
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18 Opinion of the Court 23-13156
as a red flag knowledge standard. See § 512(c)(1)(A)(i)–(ii). “[T]he
actual knowledge provision turns on whether the provider actually
or ‘subjectively’ knew of specific infringement[.]” Viacom, 676 F.3d at 31
. The “red flag provision turns on whether the provider was
subjectively aware of facts that would have made the specific in-
fringement ‘objectively’ obvious to a reasonable person.” Id.
The Second Circuit in Viacom concluded that the removal
obligation in § 512(c)(1)(A)(ii) requires more than a vague
knowledge and awareness by a service provider of the general ex-
istence of infringing material on its website for the provider to lose
safe-harbor protection—the provider must also have not acted “ex-
peditiously to remove, or disable access to, the material[.]”
§ 512(c)(1)(C). The Second Circuit reasoned that the basic opera-
tion of § 512(c) “contemplates knowledge or awareness of specific
infringing material, because expeditious removal is possible only if
the service provider knows with particularity which items to re-
move.” 676 F.3d at 30
. The specificity requirement therefore ap-
plies with equal force to red flag knowledge under the DMCA. See
id. at 31
. As a result, any alleged actual or red flag knowledge would
need to relate to specific instances of infringement to trigger
YouTube’s obligation to expeditiously remove the content.
The Ninth Circuit came to the same conclusion in UMG, 718 F.3d at 1022
. It held “that merely hosting a category of copyright-
able content, such as music videos, with the general knowledge
that one’s services could be used to share infringing material, is in-
sufficient to meet” either the actual or red flag knowledge
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23-13156 Opinion of the Court 19
standards in § 512(c)(1)(A). See id. at 1022–23. The service provider
in that case did not lose safe-harbor protection because it
“promptly removed infringing material when it became aware of
specific instances of infringement.” Id. at 1023.
1
Under Viacom and UMG, YouTube is entitled to safe-harbor
protection under § 512(c) because Athos agrees that it expeditiously
removes infringing material identified in a takedown request. But
this approach to the specificity standard applicable to red flag
knowledge has been questioned by a leading copyright treatise. See
4 Nimmer on Copyright § 12B.04[A][1][b][ii] at 12B-58–59 (assert-
ing that Viacom and UMG present an incorrect approach to red flag
knowledge). According to Nimmer, “the ‘actual knowledge’ prong
is reasonably construed to refer to specifics, whereas the ‘red flag’
prong deals with generalities.” Id. Nimmer asserts that “to show
that a ‘red flag’ disqualifies defendant from the safe harbor, the cop-
yright owner must simply show that ‘infringing activity’ is appar-
ent—pointedly, not ‘the infringing activity’ alleged in the com-
plaint.” Id. at 12B-58. On Nimmer’s reading of § 512(c), a service
provider’s CEO indicating awareness of a news article reporting on
its website being a general den of infringing activity may be suffi-
cient to establish a triable issue of fact with respect to red flag
knowledge. See id. at 12B-59. See also 1 Raymond T. Nimmer, In-
formation Law § 4:78.30 (Nov. 2024 update) (“[A]rguably, [red flag
knowledge] is a looser standard.”).
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20 Opinion of the Court 23-13156
Nimmer’s critique centers on the textual differences be-
tween § 512(c)(1)(A)(i), the actual knowledge provision, and
§ 512(c)(1)(A)(ii), the red flag knowledge provision. Specifically,
Nimmer focuses on the phrases “the material” and “is infringing”
in subsection (i), which do not appear in subsection (ii), to conclude
that red flag knowledge “deals with generalities” in a way that sub-
section (i) does not. See 4 Nimmer on Copyright
§ 12B.04[A][1][b][ii] at 12B-59. Nimmer also cites to the legislative
history of the DMCA, which explains that “[t]he important in-
tended objective of [the red flag] standard is to exclude sophisti-
cated ‘pirate’ directories—which refer Internet users to other se-
lected Internet sites where pirate software, books, movies, and mu-
sic can be downloaded or transmitted—from the safe harbor” to
bolster his conclusion that “[i]t would hardly nullify the safe harbor
to determine that it is lost when a site caters to a clientele devoted
to violating the law.” Id. at 12B-57–58 & n.61 (quoting S. Rep. No.
105-190, at 48).
As set out below, we have two questions about Nimmer’s
interpretation of the red-flag-knowledge provision but ultimately
conclude that we need not resolve them to decide this case. Nev-
ertheless, to provide a full explanation we set out our thoughts
about the Nimmer view.
First, we think it noteworthy that the examples Nimmer
uses specifically concern an internet service provider offering direc-
tory services, i.e., services aggregating an array of links to various
other websites for their users to more easily locate and visit
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23-13156 Opinion of the Court 21
directly. But the service providers in Viacom and UMG, like
YouTube here, offer only video hosting services. Although
YouTube users may use the comment functionality on its website
to post links to offsite content on the YouTube website that an-
other user could access, YouTube does not gather, review, and
then offer a directory of these links to its users as contemplated by
the Senate Report and Nimmer examples. See generally In re sub-
poena of Internet Subscribers of Cox Commc’ns, LLC, 148 F.4th 1056
,
1067 (9th Cir. 2025) (“The plain text of § 512 indicates that the safe
harbor for which a service provider qualifies depends on the func-
tion the service provider performed with respect to the infringe-
ment at issue.”).
Second, the language of § 512(c)(1)(A)(iii) incorporates both
the actual knowledge and red flag knowledge standards and as-
sumes either is sufficient to require removal of “the material” so
that a service provider may still retain safe-harbor protection. Nim-
mer’s view may be correct in the context of web directories, where
a website exclusively dedicated to content piracy might openly ad-
vertise itself as such so conspicuously as to necessitate expeditious
removal from the directory without requiring knowledge of a spe-
cific example of confirmed infringement on the website. But that
view is not necessarily accurate in the context of a single website
dedicated to video hosting services.
For a video hosting service like YouTube, if general
knowledge that the service is being used to occasionally achieve
infringement were sufficient to require expeditious removal of all
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22 Opinion of the Court 23-13156
infringing activity, the service provider would then be left to scour
its website for all instances of potential infringement in the hopes
of retaining its safe-harbor protection. Even after such scouring,
the service provider would still be left not knowing whether it had
removed enough material (or the right material) to secure safe-har-
bor protection through subsection (iii). This is the sort of self-mon-
itoring process that the DMCA emphatically does not require of
service providers. See § 512(m)(1) (stating that safe-harbor protec-
tion is not conditioned on “a service provider monitoring its service
or affirmatively seeking facts indicating infringing activity”); In re
Aimster Copyright Litig., 334 F.3d 643, 655
(7th Cir. 2003) (“The com-
mon element of [the] safe harbors is that the service provider must
do what it can reasonably be asked to do to prevent the use of its
service by ‘repeat infringers.’”). Cf. EMI Christian Music Group, Inc.
v. MP3tunes, LLC, 844 F.3d 79, 91
(2d Cir. 2016) (“Based on the avail-
able evidence, a reasonable jury could have concluded that it was
reasonable for MP3tunes to track users who repeatedly created
links to infringing content in the sideload.com index or who copied
files from those links. . . . [D]oing so would not require MP3tunes
to ‘monitor’ or ‘affirmatively seek facts’ about infringing activity in
a manner inconsistent with § 512(m)(1) because it already had ade-
quate information at its disposal in the form of takedown notices
provided by EMI as to which links were allegedly infringing.”) (ci-
tations omitted).
Importantly for this case, Nimmer also notes that “[e]ven if
[a service provider] receives tens of thousands [of] notifications as
to particulars within [a website hosted on the service], all it must
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23-13156 Opinion of the Court 23
do is to disable access to those precise items named in the umpteen
notifications.” 4 Nimmer on Copyright § 12B.04[A][1][d] at 12B-82.
So the simple accumulation of adequately-addressed DMCA
takedown requests alone cannot amount to red flag knowledge of
other infringing activity which precludes safe-harbor protection.
See id. And “the copyright owner cannot short-circuit the notifica-
tion procedure through a blanket notification;” the DMCA consid-
ers such an attempt a failed notification “and therefore counts it as
of no effect.” Id. at 12B-82–83. Because Athos bases its red flag
knowledge argument on the volume of DMCA takedown requests
it has submitted to YouTube, and on YouTube’s refusal to remove
additional content not noticed in those takedown requests, see Ap-
pellant’s Br. at 19–20, Nimmer’s criticism of Viacom and UMG has
no effect on our resolution of the red flag knowledge issue in this
case.
2
Athos suggests that YouTube’s video-hash-matching tech-
nology was “built to provide actual knowledge of infringement[.]”
Appellant’s Br. at 18. But Athos has not advanced any evidence
that YouTube has actual knowledge of any infringing material that
it does not expeditiously remove. Indeed, Athos appears to con-
cede that YouTube only gains actual knowledge of specific infringe-
ment once it receives a takedown request identifying the exact lo-
cation of particular infringing material. See Appellant’s Br. at 18
(“YouTube does not remove the clips once it becomes aware of the
red flag from which infringing activity is apparent; but rather, waits
until it receives ‘actual knowledge’ in the form of another
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24 Opinion of the Court 23-13156
takedown request.”). We conclude that Athos has not offered any
evidence that YouTube ever had actual knowledge of infringement
that was not being removed from the site because the parties agree
that YouTube expeditiously removes specific videos identified by
URL in a DMCA takedown request. See id. at 20 (“YouTube chose
to remove only the URL of the clip of which it had actual
knowledge.”).
The record reflects that the copyright management tools
could not have provided YouTube with actual knowledge because
they were never used in the manner Athos suggests. As discussed
earlier, Athos has not presented evidence that any of the video-
hash-matching tools it argues were designed to provide actual
knowledge are operated automatically or universally by YouTube.
Even if it had made such a showing, the video-hash matches gen-
erated by YouTube’s technologies, as we understand them from
this record, cannot give YouTube actual knowledge of infringing
material because the tools do not perform any analysis to deter-
mine whether the hash matches they generate are legally infringing
or not.3
Without any kind of additional analysis being performed by
the copyright management tools or YouTube employees,
YouTube cannot have “actually or ‘subjectively’ [known] of spe-
cific infringement,” because the tools at most produce lists of
3 Given the record in this case, we express no views on the application of
§ 512(c) in a case where a service provider has different functionalities and
technologies.
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23-13156 Opinion of the Court 25
possible infringement. See Viacom, 676 F.3d at 31
. See also BWP Me-
dia USA, Inc. v. Clarity Digit. Grp., LLC, 820 F.3d 1175, 1181
(10th Cir.
2016) (explaining that “if the infringing content has merely gone
through a screening or automated process, the [internet service
provider] will generally benefit from the safe harbor’s protection”).
To require YouTube to not only run its copyright management
tools in the manner Athos suggests, but to then analyze the fruits
of those tools to locate other instances of infringement, would
amount to requiring YouTube to “affirmatively [seek] facts indicat-
ing infringing activity,” in direct contravention of the balance es-
tablished by Congress in the DMCA. See § 512(m)(1). Athos has
not shown that YouTube failed to expeditiously remove any in-
fringing material it had actual knowledge of.
3
Athos maintains that, because of its understanding of
YouTube’s technologies, a takedown request regarding specific in-
fringement of a given work inherently necessitates removal of mul-
tiple other instances of that work appearing in any non-noticed vid-
eos on the YouTube platform. See Oral Argument Audio at 12:00–
13:47. This is not a plausible or workable reading of the DMCA.
Nor, as discussed earlier, is this theory rooted in a correct under-
standing of how the technologies and functionalities at issue actu-
ally work. Again, YouTube does not operate any of its copyright
management tools universally or automatically in the manner
Athos asserts.
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26 Opinion of the Court 23-13156
In response to the many takedown requests from Athos,
YouTube “fully meets its obligations under the safe harbor by re-
moving the precise material noticed.” 4 Nimmer on Copyright
§ 12B.04 [A][1][d] at 12B-82. Because Athos offers no evidence
other than the accumulation of its takedown requests, which it
concedes YouTube has adequately responded to by removing the
specific infringing videos identified, see Appellant’s Br. at 19–20, its
red flag knowledge argument fails. See Capitol Records, Inc, v.
MP3tunes, LLC, 821 F. Supp. 2d 627, 644
(S.D.N.Y. 2011) (“[T]he
DMCA does not place the burden of investigation on the internet
service provider. . . . [I]f investigation is required to determine
whether material is infringing, then those facts and circumstances
are not ‘red flags.’”) (citing § 512(m)(1)).
4
Athos’ final argument with respect to knowledge relates to
willful blindness. Athos contends that, because of its technologies
and functionalities, YouTube behaves in a way that amounts to in-
tentional avoidance of actual or red flag knowledge of infringing
material on the YouTube website. This argument is also uncon-
vincing.
“[W]illful blindness is a form of constructive knowledge for
contributory trademark infringement.” Luxottica Grp., S.p.A. v. Air-
port Mini Mall, LLC, 932 F.3d 1303, 1313
(11th Cir. 2019). “Willful
blindness occurs when a person suspects wrongdoing and deliber-
ately fail[s] to investigate.” Id.
(internal quotation marks and cita-
tion omitted). We agree with the Second Circuit that, because its
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23-13156 Opinion of the Court 27
application is limited but not abrogated by § 512(m)(1), the “willful
blindness doctrine may be applied, in appropriate circumstances,
to demonstrate knowledge or awareness of specific instances of in-
fringement under the DMCA.” Viacom, 676 F.3d at 35
.
Though a service provider “would not qualify for the safe
harbor if it had turned a blind eye to ‘red flags’ of obvious infringe-
ment,” S. Rep. No. 105-190, at 48, YouTube did not act this way
here. Congress’ focus on the obviously “infringing nature of” ma-
terial that service providers cannot be willfully blind to reflects the
intended “common-sense result” that service providers “not be re-
quired to make discriminating judgments about potential copy-
right infringement.” Id.
at 48–49.
Like the Second Circuit, “we can see no reason to construe
[§ 512(c)] as vitiating the protection of § 512(m) and requiring in-
vestigation merely because the service provider learns facts raising
a suspicion of infringement (as opposed to facts making infringe-
ment obvious).” Vimeo I, 826 F.3d at 98
(emphasis in original). Be-
cause the record reflects that YouTube’s copyright management
tools are only capable of producing lists of potential infringement,
those tools are not capable of producing sufficient knowledge to
establish (or to create an issue of fact on) YouTube’s willful blind-
ness to any infringing activity here.
B
We conclude with the alleged right and ability of YouTube
to control infringing material it purportedly derives a direct finan-
cial benefit from. Agreeing with the Second Circuit’s consideration
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28 Opinion of the Court 23-13156
of an equivalent issue in Vimeo II, we hold that YouTube’s moder-
ation and content management features do not constitute a right
and ability to control for purposes of the DMCA. We therefore do
not address whether YouTube receives a direct financial benefit
from infringing material.
The right and ability to control “requires ‘something more’
than the mere ability to remove or block access to materials on [the
service provider’s] website.” Vimeo II, 125 F.4th at 423. The service
provider must exert “‘substantial influence’ on user activities” or
otherwise have “induced the infringing activity.” Id. at 423–24.
In Vimeo II, the Second Circuit explained that “[c]alling at-
tention to selected videos by giving them a sign of approval or dis-
playing them on a Staff Picks channel (or the contrary, by demoting
them) did not restrict the freedom of users to post whatever videos
they wished.” Id. at 425. It also concluded that, given the “huge
number of videos posted by users on Vimeo,” the plaintiffs there
had failed to show that Vimeo staff had intervened in more than a
“tiny percentage.” Id. In its view, “denial of eligibility for the safe
harbor based on such noncoercive exercises of control over only a
small percentage of postings would undermine, rather than carry
out, Congress’[ ] purposes in establishing the safe harbor.” Id. at
426.
We agree with the Second Circuit, and conclude that the
same reasoning applies here, where the record reflects only that
YouTube can remove material and users from its website, can pro-
mote and auto-play select videos algorithmically, and can set
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23-13156 Opinion of the Court 29
policies for content moderation on the site. The record contains
no evidence that YouTube exercises control over any more sub-
stantial a portion of the YouTube website than did Vimeo in Vimeo
II.
None of the identified “noncoercive exercises of control” on
the part of YouTube amount to substantial influence over user ac-
tivity sufficient to establish it had the right and ability to control
any infringing material at issue in this case. See id. “To interpret
this provision as [Athos] argue[s]—to deny [YouTube] access to the
safe harbor merely because of the tiny influences it exercised—
would subject [YouTube] to a huge expense in monitoring millions
of posts to protect itself against the possibility of liability for in-
fringements.” Id. at 426–27. Athos’ approach would have us upset
the balance between copyright owners and service providers struck
by Congress in the DMCA. If that balance is to be recalibrated, it
is a matter for Congress.
IV
Aside from specific takedown requests, YouTube’s technol-
ogies and functionalities do not produce actual or red flag
knowledge of specific infringing material. YouTube, moreover,
does not exercise the right and ability to control any of the material
on its site for purposes of the DMCA. As a result, YouTube is en-
titled to § 512(c)’s safe-harbor protection. The district court’s sum-
mary judgment order in favor of YouTube is affirmed.
AFFIRMED.