Nicolo Zingales (17/12/2021). Willful Blindness. In Belli, L.; Zingales, N. & Curzi, Y. (Eds.), Glossary of Platform Law and Policy Terms (online). FGV Direito Rio. https://platformglossary.info/willful-blindness/.
Author: Nicolo Zingales
Willful blindness is a doctrine that is used by courts to substitute for actual knowledge, especially in criminal cases, where a defendant could foresee the existence of wrongdoing, but deliberately avoided making an inquiry about it. Black’s law dictionary defines it as “deliberate avoidance of knowledge of a crime, esp. by failing to make a reasonable inquiry about suspected wrongdoing despite being aware that it is highly probable”, explaining that “a person acts with willful blindness, for example, by deliberately refusing to look inside an unmarked package after being paid by a known drug dealer to deliver it. Willful blindness creates an inference of knowledge of the crime in question”1.
The term has been used repeatedly in the context of copyright2, to identify exceptions to the safe harbor in particular for hosting intermediaries. Its role is strongly related to the concept of red flag knowledge, as it may enable copyright holders to circumvent the need for online service providers to be aware of specific and identifiable infringements for the purpose of establishing the requisite (constructive) knowledge. However, the Second Circuit in the Viacom case3 has refused to provide that basis, by essentially merging the two doctrines and requiring in both cases knowledge and awareness of specific and identifiable infringements.
The Copyright Office, in its recent Report on Section 512 of the Digital Millennium Copyright Act, has suggested expanding the reading of this concept as applied to the conditions for the safe harbor of intermediaries, going beyond the Second Circuit’s strict and bringing it in line with the interpretation of willful blindness both in other areas of copyright infringement and outside the copyright context.
- Model Penal Code § 2; Cases: Criminal Law 20, 314. C.J.S. Criminal Law §§ 31–33, 35–39, 700; Negligence § 913.
- US Copyright Office. (2020). Section 512 of title 17: A report of the register of copyrights. Available at: https://www.copyright.gov/policy/section512/section-512-full-report.pdf
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012)