LENZ V. UNIVERSAL MUSIC 33
strongly suggested by the circumstances.” Id. at 2068–69.
Federal courts have applied the doctrine to non-criminal
statutes that include a requirement that a party have acted
knowingly or willfully, including intellectual property
statutes. See id. at 2068–71 (active inducement of patent
infringement under 35 U.S.C. § 271(b)); Viacom Int’l, Inc. v.
YouTube, Inc., 676 F.3d 19, 34–35 (2d Cir. 2012) (“actual
knowledge” under 17 U.S.C. § 512(c)’s safe harbor
provision); In re Aimster Copyright Litig., 334 F.3d 643,
650–51 (7th Cir. 2003) (contributory infringement of
copyright); Dolman v. Agee, 157 F.3d 708, 714–15 (9th Cir.
1998) (“willful” copyright infringement under 17 U.S.C.
§ 504(c)(2)). It does not necessarily follow, however, that we
should apply the doctrine to construe § 512(f). Section 512(f)
creates a statutory misrepresentation action, and it is likely
Congress intended the action to mirror analogous common
law torts like fraud, deceit, and misrepresentation. Therefore,
we should examine common law tort principles to construe
“knowingly,” rather than import a doctrine that developed
from the criminal law. As I explain above, common law
principles of misrepresentation establish that a
misrepresentation is knowing if the party knows it is ignorant
of the truth or falsity of its representation.
Because the common law of torts already provides ample
insight into what Congress meant by “knowingly,” there is no
need to also apply the more stringent, and confusing, willful
blindness test. To demonstrate willful blindness a plaintiff
must establish two factors: “(1) the defendant must
subjectively believe that there is a high probability that a fact
exists and (2) the defendant must take deliberate actions to
avoid learning of that fact.” Global-Tech, 131 S. Ct. at 2070.
It makes little sense in this case to ask whether Universal
subjectively believed that there was a high probability the