Exactly, and that’s what DMCA protects. Youtube and Google can “know” about infringement in the common-sense definition of the term, but until a content owner actively contacts them they can’t have “knowledge” under the current interpretation of the statute.

http://digital-law-online.info/lpdi1.0/treatise34.html

Once that content owner contacts, the only way to have knowledgeable infringement is to ignore that content owner’s notice.

There’s even a case where Perfect 10 (an adult website) sent 1,000s of letters describing infringing images on a content provider’s system, and the content provider didn’t do anything about it. The court held that the content provider still didn’t have knowledge because the notices weren’t proper DMCA takedown notices. Even though the service got these letters describing 1000s of infringing images, they didn’t have “knowledge” because even though they ignored the letters, they didn’t ignore proper DMCA notices.

Viacom only has a case if they can convince the court to have a more liberal definition of knowledge in this case.

I know this isn’t necessarily something you will believe. You are the author and I’m an anonymous internet commenter, however I would encourage you as well as the readers to talk to another lawyer who can tell you a little bit more about this.

thanks for the discussion,
Shaun Spalding

The law has a lot of leeway for website owners in not requiring them to actively police content even though it’s very practical for large websites to do so, and Google Video did so, but to deliberately overlook known cases of piracy is not something that the law forgives. The legal system is even less forgiving when a business is built on piracy and they have consistently punished companies like Napster for their acknowledgement that they were facilitating piracy.

Lawrence nailed that point when he said: “Basically [Viacom] is trying to argue that the DMCA requires proactive filtering, which it specifically does not.”

The DMCA “Knowledge” requirement is not the same thing as what a normal person would think refer to “knowledge” with the common sense definition of the term.

To violate the DMCA, a specific take-down notice must be issued. A take-down notice is the ONLY thing that can give the service provider “knowledge.” Then the only way that a service provider falls out of DMCA protection is when the provider ignores that takedown notice.

The DMCA safe harbor “see/hear no evil” defense (as case law exist right now) is indeed still entirely valid.

What Viacom is asking the court to do is change the meaning of knowledge and therefore make a change in the law.