Section 512(f) of the DMCA provides that if someone makes a material misrepresentation in a DMCA notice or counter-notification, they can be liable for damages, including costs and attorney’s fees. The standard applied is a difficult subjective standard and the section has never really been applied in any meaningful way.
Mike Masnick at Tech Dirt has an excellent story about a case where 512(f) may actually be enforced. The case is full of strange facts and interesting dynamics. The EFF and others have filed amicus briefs to the chagrin of the parties. As Mike says in his article, “… Either way, this case is shaping up to be a key one to watch in determining whether or not there are any teeth at all (even little ones) associated with 512(f) in providing a tool for those who have been attacked with bogus DMCA filings.”
Mike’s comprehensive story can be found here.
The U.S. Copyright Act has undergone many amendments and revisions since the law was first passed. One type of creative work that is protected by the US Copyright Act are “sound recordings” – recordings of music, spoken words, bird calls, etc. However, sound recordings are only protected for those made after February 15, 1972. Most recordings made prior to that time are not protected by the US Copyright statute but by the common law and the laws of the individual states. This is strange, I know, but Congress did not recognize sound recordings as protectible works of creative expression until 1971 – even though sound recordings could be made before the 1900s.
UMG Recordings (owned by Vivendi) sued Grooveshark, an online music streaming site. Grooveshark allows its users to upload sound recordings to its servers and users can search the servers and Grooveshark will stream the selected recordings to the user. Grooveshark has licenses with most of the larger owners of sound recordings (i.e., record labels).
UMG alleged that the pre-1972 sound recordings are not covered by the US Copyright Law and DMCA does not apply to such recordings.
Grooveshark’s business model is protected by the DMCA and it is the DMCA and its safe harbors that allows Grooveshark to maintain its business model. Without the protection of the DMCA as to pre-1972 sound recordings, Grooveshark would have liability for contributory infringement as to each of the pre-1972 sound recordings it has stored on its servers.
The Court found in favor of UMG, agreeing with the proposition that a federal law cannot pre-empt state laws. If the DMCA is applied to pre-1972 recordings, it would have the effect of changing the state laws regarding copyright protection. Further, the court said that only “infringers” who are infringers under the US Copyright Act can gain protection of the DMCA as to works protected by the US Copyright Act and not as to sound recordings/works protected by state law. The Court did not want to conclude that Congress intended to modify the Copyright Act’s requirement that it cannot be interpreted to pre-empt state laws. The Court stated that it was up to Congress to specifically include pre-1972 recordings as being eligible for safe harbor protection under DMCA.
This ruling poses several problems. First, it is the only case where the DMCA has been held not to apply to pre-1972 recordings. AT least one other federal case, Capitol v. MP3Tunes, reached the opposite conclusion and ruled that works protected by state laws are covered by the DMCA. And, in Perfect10 v. ccBill, the Ninth Circuit stated that all state copyright claims are are preempted by federal law. Second, this ruling did not find Grooveshark liable for contributory copyright infringement. The ruling only determined that pre-1972 recordings are not covered by DMCA. Now, the court will need to determine whether Grooveshark is liable for infringement of pre-1972 recordings based on state law. And, there is virtually no state cases that have found infringement for pre-1972 recordings. At this point, how a court will rule is wide open and rather unpredictable. Finally, probably an obvious question from Grooveshark is how in the world is Grooveshark supposed to know what is a pre-1972 recording when uploaded/ It means that Grooveshark will have to pre-screen uploads which the DMCA prohibits (thereby risking forfeiture of DMCA safe harbor as to the post 1972 recordings), Grooveshark will likely make errors, will have to hire additional people, and may not be able to maintain a going business as a result.
My opinion is that the DMCA does cover pre-1972 recordings or the entire purpose for the DMCA is lost. The legislative history support the fact that Congress intended DMCA to apply to all works under the protection of any copyright law. Any other interpretation does not support Congress’ intent to open up the internet for businesses that follow the Grooveshark model.
Today, House Judiciary Committee Chairman Bob Goodlatte (R – Va.) announced that the Judiciary Committee will conduct a comprehensive review of US Copyright Law in the coming months. In remarks made by the Chairman, he said: “The goal of these hearings will be to determine whether the laws are still working in the digital age.”
He also indicated that Maria Pallante testified last month before the Committee about her desire for the “next great copyright act.” New policy issues have arisen due to the advance of technology.
This is probably the start to a big policy review of Title 17 – the larger copyright act that includes the DMCA. The DMCA will probably be a major topic of discussion and reform (hopefully only in connection with the anti-circumvention provisions).
The statement from Goodlatte can be found here.
The long-awaited decision in the Viacom case against YouTube has finally been resolved in favor of YouTube. The Second Circuit opined in April of 2012 that the DMCA safe harbor protected YouTube against liability for copyright infringement when it stored Viacom’s copyrighted protected content on YouTube’s servers. The Court remanded the case to the lower court for a decision on 4 open areas of inquiry, as follows:
1. Did YouTube have knowledge or awareness of specific infringements?;
2. Was YouTube wilfully blind to specific infringements?;
3. Did YouTube have the “right and ability to control” infringing activity (and therefore forfeit the DMCA safe harbor)?; and
4. Did YouTube’s “syndication” of infringing clips occur at the direction of users to store the clips on YouTube’s servers?
Here is how the Court ruled as to each point.
1. Did YouTube have knowledge or awareness of specific infringements?
Viacom argued that it is not up to Viacom to figure out if YouTube has stored infringing content without the permission of Viacom. The Court said that this argument’s “foundation is an anachronistic, pre-DMCA concept”. In fact, the DMCA makes it clear by its own terms that it is the responsibility of the content owner (Viacom) to to discover infringing content and to send a DMCA Notice to YouTube. The judge believed that Viacom’s attempt to shift the burden to the ISP to police and monitor for infringing content was “extravagant” and contradicted the statutory language of the DMCA.
2. Was YouTube wilfully blind to specific infringements? Did YouTube have the “right and ability to control” infringing activity (and therefore forfeit the DMCA safe harbor)?
The Court reiterated that under section 512(m) of the DMCA, the safe harbors are not conditioned on affirmative monitoring or policing by the ISP to look for infringing material located on its servers. The Court emphasized that the ISP may be “blind” to specific infringements which would constitute “red flags” of specific infringements and therefore deprive the ISP of the safe harbors. The concept is that a service provider, even without knowledge of specific infringing activity, may so influence or participate in a user’s infringing activity, while gaining a financial benefit from it, as to lose the safe harbor. Under what circumstances can this happen?
In the Ninth Circuit, what is required is “high levels of control” over the activities of the users or “purposeful conduct” regarding the activities of the users. In at least one case, an ISP pre-screened submissions before allowing them to be posted, refused to allow postings until and unless all of its prerequisites have been met, rendered extensive advice to users regarding content and editing, constitutes an influence or participation by the ISP in the user’s infringement such that the ISP loses the safe harbors.
The Court held that YouTube did not “control” user’s activity by automating search technologies for the users to view content (including infringing content), by exercising its rights not to monitor its service for infringements, by enforcing basic rules regarding content (such as limitations on violent, sexual or hateful content), by facilitating user access, by assisting some content owners with seeking out infringing content. Moreover, there was no evidence that YouTube induced its users to upload infringing content.
Bottom line: If you are an ISP, do not pre-screen postings, advise on content (specific advice other than standard community guidelines), or edit user content. Otherwise you will lose the safe harbors. This is entirely consistent with the policy underlying the DMCA.
4. Did YouTube’s “syndication” of infringing clips occur at the direction of users to store the clips on YouTube’s servers?
YouTube “syndicates” content by formatting in such a way that allows users to view the content on mobile devices. Thus, the syndication is really a file formatting process that doesn’t change the content, but simply formats the content for mobile viewing. This is an automated process that happens to all content. The Court found that this automated feature did not change the basis of the safe harbor … infringing material stored at the direction of the users.
The opinion really did not delve into what types of facts would constitute “wilfull blindness” so as to deprive the ISP from the safe harbor. It does, however, reaffirm what all the Courts have said – the DMCA safe harbors are strong and alive and the Plaintiff in any action against the ISP must have solid, direct (not circumstantial) evidence of an intent (deliberate), or an awareness of facts that are red flags of specific infringement, or facts that satisfy a yet undefined “wilfull blindness” standard.
Viacom v. YouTube, Southern District of New York, April 18, 2013.
The House has passed CISPA (Cyber Intelligence Sharing and Protection Act). Today, many websites are participating in an internet shutdown to protect the bill. Those in opposition are concerned that CISPA will authorize the government to peek into private records of individuals under the guise of a cyber crime investigation.
Specifically, CISPA could allow private companies to share your personal information with other companies and the government without informing you of it. The wording that relates to what information can be shared is vague, which raises concerns about what personal information of yours will be shared. The bill has been changed over time to address some of these concerns but most privacy advocates feel that it still has large loopholes that could be abused.
It has been reported that the Senate does not have the support for the bill and the President will veto it if it does pass Congress.
A great article about the bill and its supporters can be found here.