Jonathan's shared items

Thursday, December 7, 2006

An Argument about YouTube's Knowledge of Infringement under the DMCA

So as I was writing my final paper on YouTube the other day, and trying to make sense of the ever-frustrating Safe Harbor provisions of the DMCA's Online Copyright Infringement Liability Limitation section, a new argument occurred to me. The problem is that it seems very obvious and yet very murky at the same time. It relates to whether or not YouTube can claim safe harbor under the DMCA. Here goes:

In 512 (c) it discusses systems like YouTube where there is "information residing on networks at directions of users." It sets up the notice-and-takedown provisions that everyone is familiar with, but it also states that if an ISP has accumulated certain levels of knowledge it can't claim safe harbor. My basic argument is that YouTube is "aware of facts or circumstnaces from which infringing activity is apparent" because it has received thousands upon thousands of successful notices of copyright infringing material that perfectly complied with DMCA requirements. Now here is where my argument ties in specifically to the statutory construction-
512 (c) says that an ISP can be safe if it:
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or`
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;`
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Now notice that parts (i) and parts (iii) refer to specific "material", but (ii) and (B) refer to more general "infringing activity." Later on in the provision, in Section 512 (c)(3)(B)(i) it says that an improperly executed notice does not count towards the knowledge requirements above. But it says nothing about successful notices!!
So my argument is that successful notices should count as awareness of "infringing activity." Whereas actual knowledge is determined on a case by case basis in reference to specific infringing "material", the accumulation of successful notices should constitute "awareness of infringing activity". As applied to YouTube, it would mean that YouTube can no longer claim that its compliance with takedown procedures protects it from being held liable for copyright infringing content that its users upload to the site. This would open it up to liability under a number of different theories, including contributory and vicarious liability, and perhaps the Grokster inducement theory.