Before the Second Circuit Court of Appeals handed down its big decision last year in Viacom v. YouTube, there was an expectation that that the appellate judges would offer some needed clarity on when exactly internet service providers are safe from or in danger of copyright infringement liability.

The Second Circuit overturned the lower court’s decision to throw out Viacom’s billion dollar claims that YouTube hosted copyright infringing material. In doing so, the appeals court agreed with much of what YouTube had to say about the high threshold of knowledge of infringements before ISPs are required to expeditiously remove material, but also determined that the federal judge hadn’t properly considered whether YouTube may have had actual knowledge of specific infringing clips or whether YouTube might have essentially willfully blinded itself from having that knowledge.

It was a mixed decision for both the parties, and legal observers have debated the meaning of the ruling.

Now the case is back at the lower court before U.S. District Court Louis Stanton for further consideration, but before the judge issues the next big ruling that decides whether the case will be dismissed a second time or proceed to trial, the judge will have to figure out an even more fundamental question: Which side bears the burden of showing requisite knowledge of infringements at the summary judgment stage? Both sides are now accusing the other of shifting that burden.

Last November, Google’s YouTube made a new attempt to win the case on summary judgment. That bears at least a little bit of emphasis: YouTube went first.

In a motion that only became unsealed on Friday, the defendant said that Viacom couldn’t make a showing that it had actual or red-flag knowledge — that “there is no evidence from which a jury could find that YouTube actually knew, or was aware of facts and circumstances from which it was apparent, that any of Viacom’s clips-in-suit were infringing, let alone that YouTube failed to expeditiously remove any such clips.”

Viacom responded with a somewhat startling admission. “It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge,” said the plaintiff.

But Viacom continued:

“It is not Viacom’s burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom’s copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability. It follows that Defendants cannot win summary judgment by pointing to the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives.”

So it’s YouTube’s responsibility to go first with the evidence? Not so fast…

According to YouTube’s reply:

“Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement – including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor.”

Both sides are now proceeding to spar on what might be said to be a bit of a procedural conundrum.

On one hand, besides making the case that there are triable issues of fact concerning whether YouTube willfully blinded itself by disabling community flagging and initially declining to do more filtering, Viacom points out that a grant of summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact.”

Remember, this is a pre-trial motion. Inferences are supposed to be drawn to the party opposing a summary judgment motion — in this instance, Viacom.

On the other hand, YouTube knows that the 2nd Circuit essentially said last year that Viacom would have to eventually demonstrate that it had knowledge or willful blindness to specific infringing clips. If it is YouTube’s burden to “affirmatively introduce evidence that it lacked knowledge of each video at issue,” then that pretty much eviscerates any possibility that an ISP can gain success at the pre-trial phase in a copyright infringement lawsuit like this present case. After all, how is it possible to prove a negative — i.e. “no knowledge”?

YouTube says, “This is the first time that Viacom has ever made such an argument.” [Billboard.biz]