ANSWER: Your Homepage should not contain infringing material or links to Infringing Material.
If you may be hosting infringing content on your website, there is an easy way to keep your home page from being taken down by a DMCA takedown notice. First, make sure your home page does not contain any infringing content and second, make sure it does not link to infringing content.
Google will not remove pages from a web site unless the page contains infringing content or a link to infringing content. This is a proper response to a DMCA Notice that asks for the removal of pages – even those without infringing material or links to infringing material. A recent example of this came from Google’s treatment of a DMCA Notice received from BPI (BPI is the British phonorecord industry’s equivalent to the RIAA).
BPI is not too keen on The Pirate Bay (TPB) and recently sent Google a DMCA Notice to remove 2,056 pages. While TPB is often targeted, it is no secret that TPB links to hundreds of thousands of infringing titles across its site, but its homepage is not one of them. Google removed all but TPB’s home page. TPB’s home page did not contain any infringing material or links to infringing material and thus, under DMCA, could not be removed or taken down. This is what Google said about BPI’s DMCA Notice:
Number of URLs specified in this copyright removal request that we did not remove because we did not find the specified copyright infringement; we already reviewed the URLs in a previous request; or the URLs were malformed or otherwise led to an error.
Here is what Google sent in response to BPI’s DMCA Notice: GoogleDMCABPI
On August 22, 2013, Harvard Professor Lawrence Lessig filed a complaint against Australian record label Liberation Music in the United States District Court, District of Massachusetts. Professor Lessig alleges that Liberation Music is liable under Section 512(f), which creates a cause of action against a person who issues a takedown notice in which he or she knowingly misrepresents that a certain activity is infringing.
The complaint relates to a 2010 lecture in which Professor Lessig discussed cultural developments in the age of the Internet, including by showing clips of the “Lisztomania” copycat video phenomenon, which involved Internet users from around the world posting videos set to the song, “Lisztomania” by the French band “Phoenix”. He subsequently uploaded a video of the lecture, including the clips, to YouTube. Shortly thereafter, Liberation Music claimed that Professor Lessig was violating its copyright in the song and issued a takedown notice. YouTube disabled access to the video.
The complaint alleges that Professor Lessig’s use of the music video clips to describe a cultural phenomenon at an academic lecture was so clearly fair use that Liberation, in issuing the takedown notice, knowingly misrepresented that the lecture was a copyright infringement. Professor Lessig may not be the best person with whom to pick a fair use fight, seeing as he is founder of the Stanford Center for Internet and Society and its Fair Use Project.
More information is available on the EFF’s page here.
As previously reported on this Blog, DMCA takedown Notices must be made in good faith by the person alleging copyright infringement. Section 512(c)(3)(v) of the DMCA requires that a takedown notice include: “a statement that the complaining party has a good faith belief” that infringement has occurred. What is “good faith” and how much of it do you need to support a DMCA Notice? This is a legally emerging issue and is presently before the Court in Tuteur vs. Crosley-Corcoran, U.S. District Court for the District of Massachusetts, filed January, 2013.
The plaintiff, Tuteur, argues that under Ninth Circuit Law, in order to make out a claim under Section 512(f), she need only allege that the defendant, Crosley-Corcoran, made an incorrect claim of infringement (incorrect because it was a fair use) and that she knew or should have known that the claim was incorrect. Tuteur’s position is that a copyright holder has an affirmative duty to consider whether there is a fair use defense or other defenses before issuing a takedown notice. This argument is, in fact, supported by the history of DMCA.
The defendant, Crosley-Corcoran, cites to a different Ninth Circuit case to argue that the standard of “good faith” in issuing takedown notices is purely subjective and, since she attested to her own good faith and consulted with an attorney, she is essentially immune from suit. She argues that there is no duty to conduct a “pre-takedown investigation” to consider potential defenses, and that any such obligation would be contrary to the DMCA’s intent to provide a “rapid response” to copyright infringement.
The parties have fully briefed the issue and oral argument was held in July of this year.The author believes that the plaintiff is correct in her legal analysis.
As soon as an opinion is issued, we will report it to you.
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.