Copyright Infringement on the Web:


By:  Sherry M. Schwartz

Title 17 of the United States Code is the cornerstone of US copyright law.  Modernization of this Act has been required to account for the massive transmission of intellectual property via the internet.  As many websites are interactive - invite interactive/third party comments, publications, and content – online service providers are concerned regarding the level of oversight required when monitoring the constant influx of third party material.

In the interest of encouraging such interactive websites, including the global dissemination of information and view points, certain safe harbor provisions were included in Title 17 via the Digital Millennium Copyright Act. See 17 USC 512(c)(providing protection of online service providers concerning content provided by third parties).  Specifically, the DCMA affords a safe harbor for online service providers; entities engaged in providing a forum for online communications and content.  The Safe Harbor Provision, 17 USC 512(c) offers a complete bar to monetary damages and injunctive (subject to certain exceptions). More significantly, it does not require that the OSP (online service provider) actively monitor the content published by third parties.

There are four safe harbor provisions set forth in Chapter 5.  To illustrate, the breadth of protection, we will focus on 512(c) stating in pertinent part:

(1)   In general.-A service provider shall not be liable for monetary relief…, if the service provider-

(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 actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;

(iii) upon obtaining knowledge, acts expeditiously to remove or disable access to, the material…

Other conditions must be met, and the alleged victim must sufficiently notify the OSP of the exact content that is infringing.  The requisites as to the notice – commonly referred to as the “take down notice” – are set forth in section 512(c)1.

The breadth of this protection is evident in its application.  In this vein, consider  the landmark decision rendered in Viacom v. YouTube. This case involved Viacom’s/Plaintiff’s claim that YouTube/Google permitted third parties to download and disseminate certain sitcoms subject to Viacom’s copyrights.  Plaintiff/Viacom sued YouTube and Google for “knowingly” [1] permitting same.

Although Viacom presented evidence that defendants took active measures to facilitate the transmissions[2], Defendant, YouTube and Google, prevailed on summary judgment; in pertinent part, the court held that the safe harbor provision provided absolute immunity for unknowingly permitting third parties to download and disseminate videos subject to Viacom’s copyright.

The Viacom case exemplifies the burden placed on a plaintiff to establish actual knowledge sufficient to overcome the protection of safe harbor protections when the website provider acts in good faith to take down infringing content upon notice of same.  In light of the immunity provision, and this particular opinion, one might assume that the legislature wants to encourage the interactive nature of websites, and deter the implication that the “innocent” platform provider is responsible for questionable third party conduct.

[1] 718 F. Supp 2d 514 (S.D.N.Y 2010)

[2] Viacom asserted that thumbnails were created for the subject episodes each time a third party published the content.  Defendant asserted that the “thumbnails” was an automated response to any new content, regardless of its origin, thereby, not rising to the level of actual  knowledge of the alleged copyright material. Id.

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