actual knowledge – Techdirt (original) (raw)

from the this-makes-no-sense dept

We’ve been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O’Grady, who made it quite clear that he didn’t much care about the internet, and didn’t see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don’t recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive “sue ’em and settle,” strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications — a decently large broadband provider — made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices… to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a “thirteen strike” policy (some of the earlier strikes involved stopping internet access until you read something and clicked something — or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA’s requirement for a “repeat infringer policy” was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA’s requirement for a repeat infringer policy — and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a “bad actor” and obscure the underlying copyright issues. Even more ridiculous was that Judge O’Grady later argued that Cox should pay the other side’s legal fees, because even bringing up the idea that it was protected by safe harbors was “objectively unreasonable.” That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

On appeal there were two key issues raised by Cox. The main issue was to argue that O’Grady was incorrect and that the DMCA safe harbors covered Cox. The second pertained to the specific jury instructions given to the jurors in the case. The new ruling unfortunately upholds the ruling that Cox is not covered by the DMCA’s safe harbors, but does say that the instructions given to the jury were incorrect. Of course, it then proceeds to make a huge muddle of what copyright law says in the process. But we’ll get to that.

The Impact on Safe Harbors

Let’s start with the safe harbors part of the ruling, which is what most people are focusing on. As the court notes, Cox (correctly, in my view), pointed out that even if it was subject to a repeat infringer policy, that should cover actual infringers, not just those accused of infringing. After all, it’s not like there aren’t tons upon tons of examples of false copyright infringement accusations making the rounds, and that’s doubly true when it comes to trolling operations. If the rule is that people can lose all access to the internet based solely on unproven accusations of infringement, that seems like a huge problem. But, here, the court says that it’s the correct way to read the statute:

Cox contends that because the repeat infringer provision uses the term ?infringer? without modifiers such as ?alleged? or ?claimed? that appear elsewhere in the DMCA, ?infringer? must mean ?adjudicated infringer.? But the DMCA?s use of phrases like ?alleged infringer? in other portions of the statute indicates only that the term ?infringer? alone must mean something different than ?alleged infringer,? otherwise, the word ?alleged? would be superfluous. Using the ordinary meaning of ?infringer,? however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms ?infringer? and ?alleged infringer? thus does not mandate Cox?s proposed definition.

Moreover, other provisions of the Copyright Act use the term ?infringer? (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court. For example, § 501(a), which creates a civil cause of action for copyright owners, states that ?[a]nyone who violates any of the exclusive rights of the copyright owner? provided for in the statute ?is an infringer of the copyright or right of the author.? 17 U.S.C. § 501(a) (emphasis added).

Similarly, the DMCA itself provides that ISPs who store copyrighted material are generally not liable for removing ?material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.? Id. § 512(g)(1) (emphases added). This provision expressly distinguishes among three categories of activity: activity merely ?claimed to be infringing,? actual ?infringing activity? (as is apparent from ?facts or circumstances?), and activity ?ultimately determined to be infringing.? The distinction between ?infringing activity? and activity ?ultimately determined to be infringing? in ? 512(g) shelters ISPs from being liable for taking down material that is ?infringing,? even if no court ?ultimately determine[s]? that it is infringing ? because, for example, the copyright holder simply does not file a lawsuit against the person who uploaded the infringing material. As this provision illustrates, Congress knew how to expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.

Again, the obvious implications of this are… insane. It means that you can potentially get people completely kicked off the internet with a series of knowingly false accusations of copyright infringement. How could anyone justify that as a reasonable policy?

The court insists that the legislative history supports this… but the only way it does is if you torture the legislative history and ignore what it says. Here’s what the court says:

The legislative history of the repeat infringer provision supports this conclusion. Both the House Commerce and Senate Judiciary Committee Reports explained that ?those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.? H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998). This passage makes clear that if persons ?abuse their access to the Internet through disrespect for the intellectual property rights of others??that is, if they infringe copyrights ? they should face a ?realistic threat of losing? their Internet access.

But, again, based on the ruling here, this still applies even if the accusations are totally false and no infringement occurred. The court seems to ignore the word “abuse” in this statement and doesn’t even bother to consider that there may be abuse on the other side — in the form of copyright trolling against non-infringers (or simply trying to harm or silence the speech of a non-infringer).

Next up, the court has to determine whether or not Cox’s repeat infringer policy was “reasonable.” This, itself, is a minefield. The law provides no guidance beyond that to qualify for the safe harbor the provider has to have “adopted and reasonably implemented… a policy that provides for the termination in appropriate circumstances of subscribers… who are repeat infringers.” That seems to leave an awful lot of discretion to the provider — which the court admits… before determining that it doesn’t think Cox’s policy was reasonably implemented. And this is where a few bad actions by Cox employees comes back to haunt the company:

Here, Cox formally adopted a repeat infringer ?policy,? but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.

The words of Cox?s own employees confirm this conclusion. In a 2009 email, Jason Zabek, the executive managing the Abuse Group, a team tasked with addressing subscribers? violations of Cox?s policies, explained to his team that ?if a customer is terminated for DMCA, you are able to reactivate them,? and that ?[a]fter you reactivate them the DMCA ?counter? restarts.? The email continued, ?This is to be an unwritten semi-policy.? Zabek also advised a customer service representative asking whether she could reactivate a terminated subscriber that ?[i]f it is for DMCA you can go ahead and reactivate.? Zabek explained to another representative: ?Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over.? He elaborated that this would allow Cox to ?collect a few extra weeks of payments for their account. ;-).? Another email summarized Cox?s practice more succinctly: ?DMCA = reactivate.? As a result of this practice, from the beginning of the litigated time period until September 2012, Cox never terminated a subscriber for infringement without reactivating them.

One would hope that this part of the ruling would at least, somewhat, protect other ISPs that don’t send stupid emails like that. But, you never know.

The Messed Up Jury Instructions

To fully follow the issues here, we have to take a quick tour to key copyright cases of years past. In the Betamax Case, Hollywood sued the makers of VCR devices (okay, okay, Betamax devices) for selling a product that its customers used to infringe. In 1984, the Supreme Court said that was crazy, and since the VCR had “substanitial non-infringing uses,” it was legal to sell it, even if it was used to infringe. Almost 20 years later, the Supreme Court chopped away at this standard a bit in the unfortunate (and still wrong) Grokster case, that said even if the tool had substantial non-infringing uses, if the company “induced” infringement, then it could still be liable. But there had to be fairly strong evidence of actual inducement by the company — in Grokster, the company more or less encouraged people to infringe.

Cox asked the court to use the Betamax standard in the jury instructions, saying that it’s not contributory copyright infringement if there are substantial non-infringing uses — but the lower court rejected that, and this court does too, pointing to Grokster (but not actually groking what the Grokster court said). But a second complaint about the jury instructions does win the support of the appeals court. Cox, rightly, argued that the jury instruction telling jurors that the standard for contributory infringement was if the company “knew or should have known of such infringing activity.” The big problem here is the “should have known” part. That is not the law. It’s not in the law. It’s not supported by court decisions and has been rejected by numerous court decisions. And, here, the court finally gives Cox a break and says that those jury instructions went too far. “Should have known” is a negligence standard — it suggests even if you didn’t know, you were negligent in not knowing, and therefor still liable. But copyright law demands actual knowledge. And thus, the original ruling is thrown out and sent back to the court.

But… even with the jury verdict being tossed, this discussion is… weird. And troubling. Remember, the Grokster standard is about “inducement” which involved a level of intent on the part of the service provider. That’s about taking specific actions to encourage the use for infringement. But, the court here keeps slipping into a separate question of “knowledge.” The knowledge question and the inducement/intent question are two separate questions. But it’s not clear that the court even realizes that. It keeps going back and forth between questions about inducement and questions about actual knowledge, to the point that it almost appears the court thinks these are the same things. But knowledge alone is not enough to prove a party induced others to infringe on a copyright.

See the following discussion:

First, Grokster?s recitation of the standard?that ?[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement? ? is on its face difficult to reconcile with a negligence standard. See 545 U.S. at 930 (emphasis added). In addition, it would have been unnecessary for the Court to discuss in detail the situations in which intent may be presumed, and those situations, like Sony, in which it may not, if liability did not require intent at all, but merely required negligence….

Looking to patent law, as the Supreme Court did in Sony and Grokster, further counsels against a negligence standard. The Supreme Court has long held that contributory patent infringement requires knowledge of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). And in 2011, the Court held that willful blindness satisfies this knowledge requirement, but recklessness (?one who merely knows of a substantial and unjustified risk of . . . wrongdoing?) and negligence (?one who should have known of a similar risk but, in fact, did not?) do not. Global-Tech, 563 U.S. at 769?71. The Court reaffirmed this holding in 2015, stating that contributory patent infringement ?requires proof the defendant knew the acts were infringing,? and that Global-Tech ?was clear in rejecting any lesser mental state as the standard.? Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928 (2015). The Court expressly rejected the possibility ?that a person, or entity, could be liable even though he did not know the acts were infringing.? Id. Thus, in the patent context, it is clear that contributory infringement cannot be based on a finding that a defendant ?should have known? of infringement.

In both Grokster and Sony, the Supreme Court adopted now-codified patent law doctrines? the staple article doctrine and the inducement rule. The Court did so because of ?the historic kinship between patent law and copyright law,? Sony, 464 U.S. at 439?42, and the similar need in both contexts to impose liability on ?culpable expression and conduct? without ?discouraging the development of technologies with lawful and unlawful potential,? Grokster, 545 U.S. at 936?37. We are persuaded that the Global-Tech rule developed in the patent law context, which held that contributory liability can be based on willful blindness but not on recklessness or negligence, is a sensible one in the copyright context. It appropriately targets culpable conduct without unduly burdening technological development.

Note that the first paragraph is about inducement, which has specific characteristics, and the latter two are about “knowledge.” But knowledge isn’t what proves the intent for inducement. So… even as it’s right to kick this back to the lower court, it feels like the 4th Circuit got twisted up by its own reasoning.

Then there’s the issue of what the court means when it talks about “specific instances of knowledge.” See this paragraph:

Selling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement. See Ludvarts, 710 F.3d at 1072 (holding that contributory copyright infringement ?requires more than a generalized knowledge . . . of the possibility of infringement?; it requires ?specific knowledge of infringement?). A seller who only generally knows of infringement is aware that ?some of [his] products will be misused? ? but critically, not which products will be misused.

This same issue came up in the Viacom v. YouTube case, in which it was found that YouTube wasn’t infringing just because it had “general knowledge” that it was hosting some infringing content. It could only be liable if it had actual knowledge of infringing content and then failed to take it down. But… how the hell do you apply that standard here? You can see how it would apply to YouTube, where YouTube can go and see the file still hosted on its servers after being notified that it’s infringing and then check to see that it is, indeed, the same material as the copyright holder claims. For an ISP, however, where the data is in motion, as opposed to at rest, all you have to go on are these often erroneous notifications from Rightscorp claiming infringement. But by the time an ISP like Cox would look at it… the transmission would be complete. So how can Cox have “actual knowledge” of infringement — absent a court ruling that the activity was infringing (bringing us all the way back around to the first point made above)?

Either way, this case is hardly over yet, as there’s still another trial to now go through. But, as it stands, it’s making a big mess out of copyright law. And that’s not good.

Filed Under: actual knowledge, copyright, dmca, dmca 512, inducement, infringement, jury instructions, knowledge, safe harbors, termination policy
Companies: bmg, cox, rightscorp

We’ve written a few times about the sad case of Veoh. Veoh was a YouTube-like site, funded by Hollywood insiders like Michael Eisner, but who got sued by Universal Music Group, claiming copyright infringement (using more or less the same theories used by Viacom against YouTube). Technically, Veoh sued first (filing for declaratory judgment after receiving a threat letter from UMG, but UMG quickly followed with its own lawsuit). UMG played dirty, not just suing the company but directly suing its investors as well. This was a pure intimidation technique, designed to scare major investors into either pulling investment or ordering the company to change course, even if what they were doing was legal. While the court dismissed the charges against the investors (and scolded UMG in the process), the intimidation might have worked. In the middle of all of this, Veoh shut down, because it ran out of money, mainly due to the lawsuit. It sold off its assets to another party, and somehow scraped together a little money to keep the lawsuit, and just the lawsuit, going.

Since then, there have been a series of rulings that have repeatedly found Veoh to be legal and protected under the DMCA’s safe harbor. The district court found in Veoh’s favor, as did the 9th Circuit appeals court. Yesterday, the appeals court ruled again on the issue, with a superseding opinion that, once again, says that Veoh was legal. Even though it’s still dead. The ruling not only reiterates the importance of DMCA’s safe harbor protections for user-generated sites like Veoh, but also shows how that still applies even given the 2nd Circuit’s slightly weaker view of the DMCA safe harbors.

The court goes through a nicely detailed explanation for why Universal Music’s interpretation of the DMCA doesn’t make any sense at all and would not only create internal conflict within the law, but also make the safe harbors effectively meaningless. Specifically, Universal Music tries, ridiculously, to argue that DMCA safe harbors aren’t supposed to apply to any service that makes files accessible to the public. As the court points out, if that were the case, the law would be silly, since copyright holders would never learn about that infringement anyway, since the works wouldn’t be available for them to find. The court points out it’s ridiculous to think that DMCA safe harbors were only meant to apply to backup services.

We do not find persuasive UMG’s effort to reconcile the internal contradictions its reading of the statute creates by positing that Congress must have meant § 512(c) to protect only “web hosting” services. Web hosts “host” websites on their servers, thereby “mak[ing] storage resources available to website operators.” The thrust of UMG’s argument seems to be that web hosts do not undertake the sorts of accessibility-facilitating functions that Veoh does, and thus the services they perform “fit within the ordinary meaning of ‘storage,’” and thereby “harmoniz[e]” with the notice and takedown procedures. UMG’s theory fails to account for the reality that web hosts, like Veoh, also store user-submitted materials in order to make those materials accessible to other Internet users. The reason one has a website is so that others may view it. As amici note, these access activities define web hosting – if the web host only stored information for a single user, it would be more aptly described as an online back-up service.

The court also rejects a theory — popular among some of our maximalist commenters — that the DMCA was only intended for purely “web hosting” companies, rather than being broadly applied across various online services such as user-generated service providers. As the court noted, if Congress wanted to limit the safe harbors in that manner, it would have said so: “Had Congress intended to include such a limitation, it would have said so expressly and unambiguously.”

The next damaging part for Universal Music: Veoh was really good at taking down videos when it received DMCA notices. UMG tried to argue that Veoh had knowledge of infringing works on its site that it didn’t remove. This argument is the crux of the YouTube/Viacom case as well: is “actual knowledge” from DMCA notices, or what kind of knowledge creates “red flag” awareness. The DMCA can be read in self-contradictory ways at points. For example, it says that a provider only has to takedown content if it receives a DMCA notice that follows somewhat strict procedures. But, then, also talks about if there’s “red flag” awareness. Take both literally, and you could, for example, wonder what happens if someone sends an improperly structured DMCA notice (say, missing certain elements), but indicates infringing works, nonetheless. Is that “red flag” knowledge? Here, as in the YouTube case, though, UMG relies on a much broader definition of red flag knowledge, in which it kind does a “but they must have known!” sort of thing. It’s basic argument: there was music on Veoh, and Veoh had to know that was infringing. The court is not buying it. First of all, just because there’s music, it doesn’t mean it’s infringing.

As an initial matter, contrary to UMG’s contentions, there are many music videos that could in fact legally appear on Veoh. “Among the types of videos subject to copyright protection but lawfully available on Veoh’s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG.” Further, Congress’ express intention that the DMCA “facilitate making available quickly and conveniently via the Internet . . . movies, music, software, and literary works” – precisely the service Veoh provides – makes us skeptical that UMG’s narrow interpretation of § 512(c) is plausible. S. Rep. No. 105-190, at 8. Finally, if merely hosting material that falls within a category of content capable of copyright protection, with the general knowledge that one’s services could be used to share unauthorized copies of copyrighted material, was sufficient to impute knowledge to service providers, the § 512(c) safe harbor would be rendered a dead letter: § 512(c) applies only to claims of copyright infringement, yet the fact that a service provider’s website could contain copyrightable material would remove the service provider from § 512(c) eligibility.

Later on, the court makes a key point that we’ve reiterated over and over again — every time copyright holders and maximalists insist that service providers need to become copyright cops — that the service can’t become copyright cops because they have no idea if stuff is actually authorized or not:

Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.

That message is something that the various lawyers representing MPAA and RIAA affiliated companies should be forced to write on a blackboard over and over again until the point is driven home.

Of course, in the YouTube case, with the original district court ruling, there were similarly strong statements, but the 2nd circuit walked it back somewhat, suggesting that a different standard need apply to “red flag” knowledge. Here the court points out that, even if that’s true, Universal Music would need to show a lot more to prove any red flag knowledge.

Of course, a service provider cannot willfully bury its head in the sand to avoid obtaining such specific knowledge. See Viacom Int’l v. YouTube…. Even viewing the evidence in the light most favorable to UMG as we must here, however, we agree with the district court there is no evidence that Veoh acted in such a manner. Rather, the evidence demonstrates that Veoh promptly removed infringing material when it became aware of specific instances of infringement. Although the parties agree, in retrospect, that at times there was infringing material available on Veoh’s services, the DMCA recognizes that service providers who do not locate and remove infringing materials they do not specifically know of should not suffer the loss of safe harbor protection.

The ruling goes on in this nature. It’s definitely a good ruling that lays out, yet again, why the DMCA safe harbors protect internet companies, and blasts holes in the silly theories of some of the big legacy players that have tried to wipe out those safe harbors. It does send one small issue back to the lower court — an exploration of whether or not Veoh is due certain fees (excluding attorneys fees). This is more of a procedural issue than anything else.

So, once again, Veoh has proven that internet services like it are protected by the DMCA from being blamed for users infringing. And yet, the fact that it had to effectively shut down and just sell off its assets, is a reminder of just how much the big copyright players can stifle and kill off innovative services via copyright law, even when they have no case.

Filed Under: actual knowledge, copyright, dmca, legal fees, red flag, safe harbors, secondary liability, service provider, user generated content
Companies: umg, universal music group, veoh, viacom, youtube

Google Defends The DMCA's Safe Harbors Against The MPAA's Attempts To Reinterpret Them In Hotfile Case

from the reasonable-brief dept

We’ve noted that the MPAA’s case against Hotfile is surprisingly weak, and seems to be arguing that usage alone is proof of Hotfile’s complicity in any infringement done by users. This is a strange argument, which is more smoke and mirrors than anything legit. It’s as if the MPAA believes that if it just screams “but… but… piracy!” loud enough, the judge will forget to look at the actual law. However, in a bit of a surprising move, Google is trying to step in and inform the judge on one key piece of the case, with an amicus brief.

At issue is the standard used to judge whether or not the DMCA’s safe harbors apply. Obviously, Google has a vested interest in having previous court rulings on the DMCA’s safe harbor followed in this case, not just because those rulings protect Google, but because they’re the only way the DMCA actually makes any sense. Google’s argument is pretty clear and well-argued: as the DMCA safe harbors themselves, the massive DMCA caselaw and the Congressional history of the DMCA all show in pretty great detail, to lose the DMCA’s safe harbors, a company has to have specific knowledge of infringement, not just general knowledge that its tool is used for infringement. The MPAA’s argument is effectively the opposite — and is completely nonsensical: that if it can show that enough people infringed, then it should be assumed that Hotfile could have stopped the infringement. As the Google argument explains simply, that’s a clear distortion of the law. In fact, they point out that the MPAA is so far off the reservation on this one that it can’t even find DMCA cases to support its position, instead choosing two cases that have nothing to do with the DMCA.

Amusingly (and ridiculously), the MPAA is so freaked out about Google explaining the law on this one key point that it’s asking the judge not to allow the brief, suggesting that rather than providing a separate third party view, Google’s brief is really just re-arguing Hotfile’s position. That’s an argument that makes little sense, though. Google’s brief is pretty narrowly focused on just one key issue in the much larger case surrounding Hotfile: it’s merely asking the court to make sure it follows the same standard used in most other courts in the country. It makes no specific statements concerning Hotfile’s actions at all. The issue Google raises is important because this court and this Circuit have not specifically ruled on the DMCA safe harbors — a fact you can bet the MPAA knows well. No doubt, the MPAA is hoping that a different ruling in this case can lead to split that would (it hopes) lead to all of those many other DMCA rulings protecting safe harbors being overturned.

I’m sure that some simplistic commenters may try to summarize this case as Google defending Hotfile, but the specifics of the filing make it pretty clear that’s not what’s going on at all. It merely points out the well accepted standards and practices for removing DMCA safe harbor protections — which are quite different than the interpretation of the safe harbors that the MPAA gave the court in its motion for summary judgment.

Filed Under: actual knowledge, dmca, red flags, safe harbors
Companies: google, hotfile, megaupload, mpaa

Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation

from the expanding-the-law dept

As you might imagine, I rarely agree with the American Intellectual Property Law Association (AIPLA) on its positions. While there are plenty of “IP” lawyers who I know well and talk to frequently — many of whom seem to agree with my position on things — it’s no secret that the belief that “IP is all good” and “more IP is better” tends to be a bit more common among such practitioners than the views in the other direction. In fact, if you asked me, I would have just assumed that the AIPLA was 100% behind Viacom in its lawsuit against Youtube/Google. So, consider me quite surprised that the main part of the AIPLA’s amicus brief in Viacom’s appeal of the YouTube case is actually siding with YouTube and saying that Viacom’s argument (as we’ve said) goes way too far.

Specifically, the AIPLA points out that Viacom’s belief that “general knowledge” of infringing content should disqualify safe harbors makes little sense, and is clearly not Congress’ intention, as seen from the DMCA itself and the Congressional record:

AIPLA urges this Court to affirm the district court’s holding that more than a generalized knowledge of infringement is required to deprive an Internet service provider (“ISP”) of the protection of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). The district court correctly held that the DMCA requires either “actual knowledge” of specific instances of infringement, or awareness of “facts or circumstances” from which specific instances of infringing activity are apparent. Whether based on actual knowledge or awareness of facts or circumstances, the level of knowledge that is sufficient to strip the ISP of its protection under Section 512 of the Copyright Act, as amended by the DMCA is knowledge of specific instances of infringement. The district court’s holding is consistent with the legislative history of the DMCA and relevant case law. AIPLA urges this Court to reject Viacom?s broad attempt to deprive Internet service providers of the benefits of the safe harbor provisions of the DMCA based on generalized knowledge that infringing activity is occurring on a site.

The AIPLA brief highlights how the Congressional record clearly shows that both the House and Senate said that “defective” DMCA notices need not be followed, and there should be no liability for not following such a notice. Yet, if Viacom’s argument is correct, then a defective DMCA notice would still serve as “general knowledge” of infringement or a “red flag” that would require further investigation. Yet, both houses of Congress specifically rejected that position — and with it Viacom’s main argument.

There are two other parts of the AIPLA’s brief which actually suggest points that ask the court to push back on two elements of the district court’s summary judgment ruling, but those are smaller points compared to the “main event” question of whether or not general knowledge or specific knowledge are needed to trigger takedowns. It’s surprising, but nice to see the AIPLA come out in favor of the only interpretation that makes sense to many of us: you can’t be expected to police content if you haven’t actually learned that it is, in fact, infringing.

Filed Under: actual knowledge, copyright, dmca, red flags
Companies: aipla, google, viacom, youtube

YouTube Smoking Guns? What Constitutes Actual Knowledge?

from the this-ought-to-get-interesting dept

With the judge tossing the Veoh/Universal Music lawsuit last month, it certainly appeared that Viacom might be on weak ground when it came to its lawsuit with Google over YouTube infringement. As with the Veoh suit (which was nearly identical) the DMCA’s safe harbors on service providers almost certainly should protect the service provider from the actions of its users (which is a good and reasonable thing). However, I’d been hearing rumors for a little while now of a “smoking gun” from Viacom, and Greg Sandoval is now reporting on the same thing: that during discovery Viacom came across emails showing that YouTube employees “knew” and discussed infringing content on the site and did nothing about it. On top of that, some YouTube employees supposedly uploaded infringing content as well. The key question, then becomes, did YouTube have “actual knowledge” of infringement, and if so, does that remove the DMCA’s safe harbor provisions.

But, of course, nothing is that simple. When you’re talking about a corporation, what constitutes “actual knowledge”? Is it one employee knowing about things? Is it one executive? And how does fair use play into all of this? Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well? And, of course, none of this is particularly simple. According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms. If even Viacom can’t determine what’s infringing or what’s legit, why should YouTube be expected to have that knowledge. On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn’t want the same content uploaded by others? Finally, even if this does constitute “actual knowledge,” wouldn’t it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content? Does knowledge of a single infringing content take away all safe harbors on the other content?

Suddenly, the lawsuit may have become a lot more interesting in that it may address some of those questions…

Filed Under: actual knowledge, copyright, dmca, videos
Companies: google, viacom, youtube