DMCA section 512
DMCA section 512 activities where no copyright infringement relief/penalties – mere conduit, system caching, hosting third party content, search
- “Safe Harbors”: 4 categories of service provider activity that qualify for liability limitations
1) Mere conduit transmissions (Internet service providers, like Spectrum)
2) System caching (hosting content)
3) Hosting of third party content (like Youtube)
4) Search (like Google, Yahoo)
Additional requirements to DMCA s512
Additional requirements - register agent, comply with valid take-down notices, terminate repeat infringers, no actual or red flag knowledge
- Not automatically safe, need to comply with certain requirements:
1) need to register DMCA Agent to receive take down notices with Copyright Office Notice
2) need to comply with valid take down notices
3) need to terminate repeat infringers
4) Search and Hosing providers must not have either actual knowledge or red flag knowledge of infringing content (and if they do must expeditiously remove the content)
5) BUT no duty to monitor or responsibility to “affirmatively seek facts indicating infring activity” para 512(m)(1)
➔ if you qualify, there is no monetary relief (maybe injunctive) ven if found liable for copyright infringement. You can still qualify for copyright infringement even if you fall in the safe harbor category, just limits your liability
YOUTUBE AND COX
1. Red Flag knowledge, or facts from which infringement is apparent (objective standard?), a high (insurmountable?) bar
Viacom v Youtube... Facts
Viacom sued Youtube for direct and secondary copyright infringement based on the public performance, display and reproduction of their audiovisual works on the Youtube website. 2nd court found in favor of Youtube saying it benefitted from safe harbor protection because it didn’t have item-specific knowledge of infringement (only general). Appeal court found in favour of Viacom, went back to DC who again found in favor of Youtube.
Youtube v Viacom take aways.
According to 2nd and 9th circuit:
‘Red flag knowledge’ is only triggered when awareness of specific and identifiable instances of infringement
Actual knowledge is ‘subjective’ whereas red flag is/must be ‘objective’
There needs to be ‘something more’ than common law vicarious standard in terms of right and ability to control
Even when infringing material resides on the provider’s system, can be removed by the provider, the provider has implemented a filtering system and the provider has the ability to search for infringing content on its system, not sufficient to meet “ability to control’
Changing file formats of user uploaded content, indexing the content by genre, providing search functionality of content doesn’t equal ‘right and ability to control’
➔ Based on above, s.512 has been reduced to notice and take down (no notice and stay-down mechanism)
➔ Service providers can have generalized knowledge of infringing activity, including on platforms that they control, without losing safe harbor protections
2... knowledge requirement?
Knowledge isn’t required if service provider has “right and ability to control” content, but has not been found even if material resides on provider’s system, can be removed by provider, provider has implemented filtering system and can search for infringing content
- As above, main points from Viacom v Youtube
3. Contra
Contra - Cox as conduit lost safe harbor protections for not having reasonably implemented a policy to terminate repeat infringers – always reactivated after termination, no evidence ever terminated anyone for copyright infringement, refused to accept agent’s notice
BMG v Cox
- BMG v Cox: Sole US case where a party has been found to be outside of safe harbor provision, because it didn’t reasonably implement a policy to terminate repeat infringers and was held liable for copyright infringers. This is ironic because Cox is an access provider like Spectrum, it doesn’t control what is put on sites (contra Youtube that actually encourage content posting but is held to be within the safe harbor)
THE EU
1. Per Article 8.3 of the eu copyright directive: “member states shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
2. No monetary relief à a “no fault” approach to securing intermediary assistance via court ordered remedies.
-Strategy that encourages intermediaries (who are best placed to stop the infringement) to cooperate with government and anti-piracy efforts
- Even if a party qualifies for a safe harbor, it can still have no fault injunctive relief against them.
3. Removes site (instead of just file) from search results, hosting provider, domain name registries
- In Europe there are more injunction related measures available to deal with issue:
Site blocking: proportionate and effective rule to protect fundamental rights. Numerous studies have showed that it’s an effective tool in Europe
Search: Complete delist of private websites from search results (Allostreamin/France)
Hosting provider: removal of pirate websites (Voxility/Romania)
Domain Name Registries: Suspension of domain names of pirate websites EuroDNS/Luxembourg)
THE NORTH FACE/PARTNERING
1.DMCA for trademark infringement (or CDA for that matter), so in us can more easily use trademark law to take down websites via intermediaries – similar to EU approach
- New US civil litigation strategy (‘North Face strategy’), developed in the trademark case Tiffany v eBay and then applied in certain copyright cases. Sued the websites in the US (commerce entering in the US even if foreign production), and used Federal Rule of Civil Procedure 65 saying you can bring an injunction against the operator or any person who is in active participation
- Applied in North Face v Fujan – sued party providing the domain name/website, court said either suspend or you will be found liable for infringement.
- Applied in the music business too, Cloudfare was a passive provider but court said now that you have a court injunction you have awareness so either suspend website or you will be found liable for infringement
2.Also, content owners can partner with payment processors, online ad partners, domain name providers, others to develop scalable/reasonable systems to enable the broader development of business relationships among them
Music: Piracy Context
1991-1999: Introduction to MP3 compression technology, in 8 years technology changed massively and created a devastating impact to the music industry (50% drop in revenues 1999-2009)
- in past 5 years there has been a study but not full recovery in the last 5 years thanks to streaming, in 2020 level of revenues still not as high as in 2021
Film industry/DVD
VHS was huge business, growing from 1981, started dropping in 2002 and really small in 2007
- DVD launched in late 1997 but revenues only started in 1999.
- First encryption technology: When the DVD was launched the idea was that they would put a watermark on the DVD, and then each appliance that was able to read the DVD would have to take proactive measures to ensure it wasn’t possible to copy it. But the computer industry was against that, and suggested encryption – with any person who wants to decrypt it will have to license it ➔ all the players came out with the First Encrypted Digital Consumer Format (CSS). IP lawyers were involved here to assess how to ensure copying is only done for private view after decryption occurs
- Subscription Video On Demand (SVOD) is a healthy and growing market (Netflix, Disney+ and others experiencing rapid growth in 2020)
Piracy copyrights online – technical infrastructure:
- Pirate ecosystem is complicated because have multiple players: Website, site operating, Hosting provider (CON), Domain registrar registry, Access Providers, search engines, social media sites, ads/payment
- Multiple piracy styles (peer-to-peer, streaming, cyberhackers), international aspects made it very difficult to enforce because need cooperation
- Enforcement options: civil and criminal actions, governments reporting, notice-and-takedown and voluntary measures
- Online enforcement for civil litigation:
US law; Section 12 of the Digital Millennium Copyright Act (DMCA) = contains the ‘safe harbors’ that, if a platform satisfies, limits their liability
Article 8.3 of the EU Copyright Directive with no harm injunction mechanism
!“Safe Harbors”!:
categories of service provider that qualify for liability limitations
1) Mere conduit transmissions (Internet service providers, like Spectrum)
2) System caching (hosting content)
3) Hosting of third party content (like Youtube)
4)Search (like Google, Yahoo)
- Other internet intermediaries like payment providers (Visa) are not covered by the safe harbors, it has to be one of the 4 categories
Automatic safety?
Not automatically safe, need to comply with certain requirements:
- need to register DMCA Agent to receive take down notices with Copyright Office Notice
- need to comply with valid take down notices
need to terminate repeat infringers
- Search and Hosing providers must not have either actual knowledge or red flag knowledge of infringing content (and if they do must expeditiously remove the content)
- BUT no duty to monitor or responsibility to “affirmatively seek facts indicating infring activity” para 512(m)(1)
➔ if you qualify, there is no monetary relief (maybe injunctive) ven if found liable for copyright infringement. You can still qualify for copyright infringement even if you fall in the safe harbor category, just limits your liability
Viacom v Youtube (2nd Cir, 2012):
Facts: Viacom sued Youtube for direct and secondary copyright infringement based on the public performance, display and reproduction of their audiovisual works on the Youtube website. Claimed that Youtube breached this by allowing users to upload and view hundreds of thousands of videos owned by Viacom without permission. Both parties also asked for partial summary judgement with respect to the applicability of the Digital Millenium Copyright Act (DCMA) safe harbor defense. District court granted summary judgement in favor of Youtube, claiming it benefits from safe harbor under DCMA case went on appeal, it was overturned in part, District judge again found in favor of Youtube, appeal began again but parties settled
Issue: Does the actual knowledge or awareness of facts or circumstances that would disqualify a party from benefitting from the safe harbour protection under para 512(c)(1)(A) of the DMCA requires knowledge of specific and identifiable infringement? I.e. is item-specific knowledge of infringing activity required for someone to be considered to have the right and ability to control infringing activity under para 512(c)(1)(B)?
Ruling:
2nd court of appeal found that District Court was wrong to find in favor of Youtube. Right and ability to control infringing activity (red flag knowledge) does not require item-specific infringement.
when it went back to the District Court however, judge Stanton found again that Youtube had no actual knowledge and therefore could not have “willfully blinded itself. He also ruled that YouTube did not have the "right and ability to control" infringing activity because "there is no evidence that YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to have participated in their activity.
case went back on appeal but it settled before so no clear outcome.
Perfect 10 v CCBill
Red flag knowledge not triggered when hosting provider was aware of reports that site was a “haven for pirated content.”
BMG v Cox
One case where a party has been found to be outside of safe harbor provision, because it didn’t reasonably implement a policy to terminate repeat infringers and were held liable for copyright infringers. This is ironic because Cox is an access provider like Spectrum etc, don’t control what is put but sites like Youtube that actually encourage content posting are held safe.
EU Copyright Article 8.3
contains sentence allowing injunctive relief against online intermediaries regardless of any liability:
- “Member States shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”
Rationale is that intermediaries are usually best placed to end infringements. (Recital 59 of the directive)
No fault approach to secure the assistance of the intermediaries. Even if qualify for a safe harbor can still have no fault injunctive relief against them
Result in Europe
1) Site blocking: proportionate and effective rule to protect fundamental rights. Numerous studies have showed that it’s an effective tool in Europe
2) Search: Complete delist of private websites from search results (allostreaming/France)
3) Hosting provider: removal of pirate websites (Voxility/Romania)
4) Domain Name Registries: Suspension of domain names of pirate websites EuroDNS/Luxembourg)
Difference between US and EU Approach:
Difference between US and EU Approach
US focusses on takedown notices: takedown of infringing content on a URL-by-URL basis, with infringing files of most of the popular content re-appearing on the same website or easily discoverable via search within minutes – if not sooner – following takedown
EU focusses on no fault injunctive relief: Site blocking, removal, de-listing or blocking access to entire sites and domains devoted to copyright infringement
North Face Strategy
New US civil litigation strategy (‘North Face strategy’), developed in the trademark case Tiffany v eBay – sued the websites in the US (commerce entering in the US even if foreign production), and used Federal Rule of Civil Procedure 65 saying you can bring an injunction against the operator or any person who is in active participation
Applied in North Face v Fujan – sued party providing the domain name/website, court said either suspend or you will be found liable for infringement.
Applied in the music business too, Cloudfare was a passive provider but court said now that you have a court injunction you have awareness so either suspend website or you will be found liable for infringement