Seven years seems to be the optimum time it takes before content owners and service providers get tired of intellectual property (IP) litigation and settle. And, boy, is 2014 the year they are settling.

In January, it was a seven-year long trade mark battle between L'Oreal and eBay before the UK courts (and the CJEU) that bit the dust. Last week, also after seven years of intense litigation, the behemoth case of Viacom v YouTube has ended, making the parties rejoice (we hope) while their lawyers look on despondently, remembering the good times.

The case dates back to March 2007, when US media giant Viacom commenced copyright infringement proceedings against YouTube in a New York federal court after Viacom and its affiliates, including Paramount Pictures, discovered that its copyright-protected content (episodes, movies and substantial segments thereof) were uploaded onto YouTube without Viacom's permission by YouTube users. Viacom was not holding any punches either, claiming approximately $1bn (£600m) in damages for the infringement.

Viacom's dealings with YouTube were different from that of other media corporations, namely NBC and CBS, who chose to take a more 'collaborative' approach. NBC had dealt with infringing works on YouTube on a case-by-case basis. CBS seemingly heeded the old commercial lawyer adage of 'make deals, not war' in taking a more permissive approach with YouTube. CBS, seeing that the future was now, established its own YouTube channel; entering into a deal with YouTube to receive a share of the advertising revenue, and has not seemingly turned back.

At the time, many did not rate Viacom's chances of success. The Digital Millennium Copyright Act's (DMCA's) Safe Harbor provisions would, inevitably, help save the day for YouTube. Sure enough, a summary judgment decision of Judge Stanton in 2010 and an appellate court ruling from the Second Circuit Court of Appeals in 2012 would prove this prophecy right.

During the summary judgment hearing, Viacom argued that YouTube knew and had knowing intent that it was inducing or encouraging the uploading of infringing content onto its website – the so-called "Grokster intent".

The Supreme Court in Grokster provided three factors for that could be used to determine whether a company should be held liable for the inducement or facilitation of copyright infringement by virtue of its business model:

(i) whether the defendant communicated to users that their service could be used for infringing purposes;

(ii) the absence of absence of filtering technology; and

(iii) their advertising-revenue model.

Viacom argued that all these factors were present by virtue of YouTube's "patently illegal objective" to actively encourage the growth of the site as, according to the documents produced during the litigation, "as aggressively as we can through whatever tactics, however evil" (see para 85 of the Statement of Undisputed Facts), their refusal until May 2008 to implement filtering tools and the fact that YouTube's business model was based on advertising revenue. Viacom was also at pains to repeatedly emphasize YouTube's intent that the site be used for infringing purposes as well as turning a blind eye to the videos containing infringing content being uploaded by its users.

This emphasis on intent was for good reason. The robust safe harbour provisions set out in Section 512, limit a service provides direct, vicarious and contributor infringement liability for four acts – transmitting, caching, storing and linking to infringing copyright-protected content. The scope of the safe harbour applicable in this case was that relating to the storing provisions (Section 512(c)(1)). For YouTube to benefit form the safe harbour provisions it had to satisfy three main threshold requirements. First, that it did not have actual knowledge or awareness of the infringement (the 'red flag test'). Secondly, that it did not receive a financial benefit directly attributable to the infringing activity. Thirdly, that upon notification it acted expeditiously to remove any infringing content. As a prerequisite to this protection, YouTube also had to ensure that they adopted and implemented a 'notice and take down' policy and did not interfere with standard technical measures which are used by copyright owners to identify and protect their works.

Judge Stanton's summary judgment ruling held that YouTube had insufficient notice of particular, specific infringements for them to have "actual knowledge" or "aware[ness] of factors or circumstances" which would disqualify them for the safe harbour protection. Without item-specific knowledge of infringing activity, a service provider could not be found to have "the right and ability to control" infringing activity under section 512(c)(1)(B). Further, the District Court held that the replication, transmittal and display of videos on YouTube was done "by reason of the storage at the direction of a user" under section 512(c)(1). The net effect was that YouTube benefited from the safe harbor provisions.

On appeal, the Court agreed with Judge Stanton's interpretation of the knowledge requirement stating that under Section 512(c)(1)(A) knowledge alone will not disqualify a service provider from the safe harbour protection. What will disqualify a service provider is if they have the knowledge or awareness but does not act expeditiously to remove or disable access to the material. Removing access to the material, of course, requires specific knowledge of the infringing material. To that the court said (and cool compress to the ready):

"The actual knowledge standard asks whether the service provider actually or "subjectively" knew of the specific infringement, while the red flag provision turns on whether the provider was "subjectively aware of facts that would have made the specific infringement 'objectively' obvious to a reasonable person". The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the