IP Law Daily, COPYRIGHT—11th Cir.: YouTube not required to run copyright match technology in order to preserve DMCA safe harbor, (Jan 8, 2026)

By Matthew Hersh, J.D.

Another court adds to the building consensus over the narrowness of “red flag” knowledge.

YouTube was entitled to seek protection from the safe harbor provision of the Digital Millennium Copyright Act even though it had, but did not deploy, technology capable of identifying matches between videos identified in takedown requests and videos with similar content elsewhere on its service, the U.S. Court of Appeals for the Eleventh Circuit has held. The court, in affirming a district court’s grant of summary judgment in favor of the video sharing service, emphasized that YouTube’s existing content matching technology was incapable of running without human intervention and that YouTube could not be required to “affirmatively” seek facts about possible infringing activity (Athos Overseas Limited Corp. v. YouTube, Inc., No. 23-13156 (11th Cir. Jan. 7, 2026)).

The opinion arises out of a dispute between YouTube and Athos Overseas Limited, which owns the copyright to many classic Mexican and Latin American films. Athos sued YouTube (and its corporate parent Google) in 2021, alleging copyright infringement based on the unauthorized posting of its copyrighted material by other YouTube users. The complaint alleged that Athos and its affiliates “collectively sent more than ten thousand (10,000) notices of copyright infringement to YouTube, at the rate of five (5) to ten (10) notices per day, for over six (6) years.” Moreover, even where YouTube successfully removed the infringing clip specified in the takedown notice, the complaint asserted, YouTube “fail[ed] to remove all clips that can be reasonably located using the information in the takedown notice, thereby willfully allowing the infringement to continue.”

The district court, acting on a report and recommendation from a magistrate, granted summary judgment to YouTube. This appeal followed.

Red flag knowledge. The court of appeals affirmed the judgment. Under the DMCA safe harbor provision, codified at 17 U.S.C. § 512(c), a service provider qualifies for protection only if it (1) does not have “actual knowledge” of infringing material on the system and (2) is not “aware of facts or circumstances from which infringing activity is apparent”—or “red flag” knowledge, as the second prong is commonly known. As the court of appeals emphasized, courts interpreting that provision to date—most prominently 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)—have made clear that any alleged actual or red flag knowledge needed to relate to specific instances of infringement in order to trigger an obligation to remove the content. In other words, the court of appeals made clear, the removal obligation of the DMCA “requires more than a vague knowledge and awareness by a service provider of the general existence of infringing material on its website for the provider to lose safe-harbor protection.”

The fact that Athos sent thousands of takedown notices targeting the exact same works, the court found, did not change the outcome. YouTube owns sophisticated technology, Athos noted, that enables it to regulate piracy on its network. For example, Athos noted, users who choose to enroll in YouTube’s Content ID system are notified when content is uploaded that matches their own—enabling them to choose whether to have the material removed or leave it up and get a cut of the advertising revenue it generates. Similarly, Athos explained, users of YouTube’s less advanced Copyright Match tool are presented with matches which they can use to craft takedown requests. If YouTube had knowledge of the movies at issue through Athos’s takedown requests—and knowledge of how to find matching copies through the technological means at its disposal—then, Athos argued, YouTube must have had actual or at least “red flag” knowledge of the existence of those matching copies. But the court of appeals disagreed.

The problem with Athos’s argument, the court found, was that Athos failed to recognize the difference between a human-driven operation versus an automatic one. YouTube’s copyright management tools, the court emphasized, “at most produce lists of possible infringement.” The user who operates those tools, the court emphasized, is then left to make the decision about whether the files actually infringe and, if so, what to do with them. Moreover, the court noted, it is possible that a video match identified by YouTube’s technology is not actually a violation of the underlying copyright—such as when the copyrighted content generating the match constitutes fair use “or when it is uploaded by the copyright owner, a subsidiary, or a licensee.” Thus, unless YouTube performed additional analysis of each match, the court noted, it could not have “actually or ‘subjectively’” known of any infringement. And to require YouTube to do this analysis, the court noted, “would amount to requiring YouTube to “affirmatively seek facts indicating infringing activity”—something that the DMCA did not require.

Other DMCA factors. The court also easily disposed of Athos’s challenges on the other prongs of the safe harbor test. YouTube did not have the right and ability to control content on its website for DMCA purposes, the court found, where the record reflected only that YouTube “can remove material and users from its website, can pro-mote and auto-play select videos algorithmically, and can set policies for content moderation on the site.” To interpret the DMCA to deny safe harbor protection “merely because of the tiny influences it exercised” with these activities, the court found, “would subject YouTube to a huge expense in monitoring millions of posts to protect itself against the possibility of liability for infringements”—something that would upset the balance between copyright owners and service providers struck by Congress in the DMCA. As to the question of whether YouTube derived a direct financial benefit from infringing activity in controlled on its service, the court found, the question was moot in light of the finding that YouTube did not control that content.

The Case is No. 23-13156.

Judge: Jordan, A.

Attorneys: Reinaldo J. Dorta, Jr. (Dorta & Ortega, PA) for Athos Overseas Ltd. Corp. Dylan Byrd (Wilson Sonsini Goodrich & Rosati, PC) for YouTube, Inc., YouTube, LLC and Google, LLC.

Companies: Athos Overseas Ltd. Corp.; YouTube, Inc.; YouTube, LLC; Google, LLC

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