Many Internet Service Providers (ISP) assume that take-down requirements with respect to copyright claims are fairly standard and that they can readily avoid copyright liability for posts by users by following some simple rules. The activity in the Courts on the Circuit Courts on this issue shows otherwise.
As you may recall from our previous blog post, the 2nd Circuit recently set a new knowledge standard for an ISP to claim the “safe harbor” protection of the Digital Millennium Copyright Act (DMCA). According to the 2nd Circuit in Viacom v. YouTube, an ISP may be prohibited from claiming the safe harbor against liability for copyright infringement, not only if it has actual knowledge of infringing content on its website, but also if it is aware of facts or circumstances that would make the specific infringement apparent to a reasonable person (“red flag” knowledge). This ruling shifts some responsibility away from the copyright holders and punishes ISPs that engage in “willful blindness,” even if they otherwise comply with DMCA provisions and lack specific, actual knowledge of copyright infringements posted on their sites.
The 2nd Circuit ruling caused such large waves in the DMC safe harbor that the 9th Circuit has ordered briefing to consider rehearing en banc UMG vs. Veoh, a case between a major music publishing company and a video sharing site. In this 2011 case, the 9th Circuit ruled that copyright holders must first identify specific infringing videos before the ISP is deemed to have the knowledge under the DMCA that is prerequisite to the ISPs having the responsibility to take down the infringing material. The Appellate Circuit has now ordered the Veoh parties to brief the following: “Does the Second Circuit draw the correct distinction between actual and red flag knowledge? If so, does the distinction affect the disposition of this case?”
In Viacom v. YouTube, the 2nd Circuit also addressed the meaning of an ISP’s “right and ability to control” infringing content, because, to be eligible for the DMCA safe harbor, the statute requires that an ISP demonstrate it did not have that “right and ability to control” capacity. The 2nd Circuit opinion says that “right and ability to control” means something more than simply the ability to remove or block access to materials posted on a service provider’s website, a capacity of most ISPs, but it does not explain what the “something more” would be. Now, the 9th Circuit has decided it wants a conclusion. Thus, it also ordered the Veoh parties to brief the Court on the following: “If there is no [actual] knowledge requirement, does a copyright holder need to show that a service provider possesses ‘something more than the ability to remove or block access to materials posted on a service provider’s website’ in order to [show that ISP’s] have the right and ability to control infringement? If so, what must the copyright holder show? Should this Court adopt the Second Circuit’s resolution of these questions?”
Attorneys for UMG and Veoh have until the end of June to submit supplemental briefs, and a hearing may take place at a later date. If the 9th Circuit decides to rehear the case, the decision will impact online copyright nation-wide and could either undermine or buttress the 2nd Circuit’s YouTube rules for ISP knowledge when dealing with third-party infringing content.
Lizbeth Hasse
Latest posts by Lizbeth Hasse (see all)
- Creative Industry Law Mentioned in The Hollywood Reporter - September 18, 2015
- Work for Hire and the Significance of California Labor Code Section 3351.5 - June 2, 2015
- Why Lawyers Should Not Sign NDAs with Clients - April 7, 2015
- What makes a good trademark? - March 4, 2015
- Business Entity Types — What Are They? - February 25, 2015