E’ negativa la risposta dell’ 11° circuito 07 gennaio 2026, caso n. 23-13156, Athos c. Youtube :
<<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>>. p. 16.
Poi: <<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>>, p. 23.
Ancora: << 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.
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 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>>, p. 24/5.
Sub B c’è una breve ma chiara spiegazione tecnica delle funzioni di hash-matching predisposte da Youtube.
La sentenza è utile anche per noi, dato che la disciplina posta (ora) dall’art. 6 del DSA reg. UE 2022/2065 non è così diversa.