Compliance With Notice and Takedown Provisions of the
DMCA
In 17 U.S.C. § 512, subsections (c) and (d), special
notice and takedown provisions are outlined for OSPs that host
copyrighted materials on their platform or contain links to
copyrighted material on their platforms, respectively. If these
particular OSPs comply with the notice and takedown provisions,
then copyright holders' claims will likely fail. The provisions
include 1) not benefiting financially from the alleged
infringement, 2) not having actual or red flag knowledge of
infringements, 3) quickly removing known infringements, and 4)
writing, adopting, posting on its website and reasonably
implementing a repeat infringer policy.[i] Particularly, copyright
holders find the most room for litigation on the second and fourth
issues.
Knowledge
To receive safe harbor, a defendant must be unaware of any
facts or circumstances that make it apparent that a user is using
its system to infringe on copyrights. This means a defendant will
need to show it lacked both actual and red flag knowledge of the
infringement. Having actual knowledge turns on whether the provider
subjectively knows of specific infringements, while having red flag
knowledge "turns on whether the provider was subjectively
aware of facts that would [make] specific infringement[s]
'objectively' obvious to a reasonable person."[ii] Liability
under this factor is limited in that OSPs are not required to
monitor or affirmatively seek out infringing activity. Nor are they
required to act on a general knowledge that rampant infringement
takes place on their platform. Having a general knowledge of these
activities will not disqualify an OSP from protection, whereas a
specific knowledge with no remedial response will.
In Disney Enterprises, the court found that Hotfile had actual or red flag knowledge of the infringement. Thus, Hotfile was forced to assume vicarious copyright infringement liability. Likewise, in Columbia Pictures Industries, Inc. v. Fung, the court found that Fung had red flag knowledge of infringement. The court held that Columbia Pictures proved Fung's inducement liability.
Repeat Infringer Policies
Another issue commonly examined by courts to determine
infringement liability is repeat infringer policies. Recent cases
highlight that noncompliance with this requirement can be fatal to
the OSP's case. Often, the same users, whether under different
usernames or the same username, repeatedly post copyrighted
materials on the OSP's platform. By "adopt[ing] and
reasonably implement[ing]" a repeat infringer policy, OSPs
could avoid secondary liabilities.[iii] In Mavrix Photographs LLC v. Sandra
Rose LLC, the Central District of California looked for these
policies to provide for termination of subscribers and account
holders who were repeat infringers.[iv] Summary judgment was granted to Mavrix
Photographs when the court found no evidence of a policy of this
sort. Similarly, in Disney Enterprises, Hotfile was found
ineligible for safe harbor and ultimately liable for vicarious
copyright infringement because it failed to bar repeat infringers.
In a similar case, OSP Grande Communications Network LLC was denied
safe harbor because the company failed to act in the face of
ongoing infringement by its subscribers.[v]
Some courts have been more lenient. The Ninth Circuit in Ventura Content, Ltd. v. Motherless, Inc. allowed website operator Motherless to avail itself of DMCA safe harbor.[vi] Motherless did not have an extensive written repeat infringer policy but was found to have safe harbor because the operator monitored and deleted thousands of infringing accounts and enforced Motherless' limited policy.
[i]
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)
(vicarious infringement claim fails because there was no evidence
that defendant benefitted financially even when there was evidence
defendant knew of potentially infringing activity); Rossi v.
Motion Picture Ass'n of America Inc., 391 F.3d 1000 (9th
Cir. 2004) (copyright claims fail because defendant complied with
notice and takedown procedures).
[ii] Columbia
Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1043 (9th
Cir. 2013) (citation omitted).
[iii] 17 U.S.C.
§ 512(i) (2010).
[iv] Mavrix
Photographs LLC v. Sandra Rose LLC, No. 2:15-cv-00596-CBM-AGR,
2016 WL 6246408, at *3 (C.D. Cal. Apr. 6, 2016).
[v] UMG
Recordings, Inc. v. Grande Comm'n Networks, LLC, No.
A-17-CA-365-LY, 2018 WL 1096871, at *9 (W.D. Tex. Feb. 28, 2018).
See also 881 F.3d 293, 305 (4th Cir. 2018).
[vi]
Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597,
619 (9th Cir. 2018).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.