Cybertelecom Federal Internet Law & Policy An Educational Project

DMCA: Defenses to Liability

There are four possible defenses to liability that deal with transmission, caching, storage, and search engines. [17 U.S.C. §§ 512(a)-(d) ]

In order to be eligible for any of these defenses, a service provider must

adopt [Corbis Slip at 15 (discussing how detailed policy must be)],

implement [Corbis Slip at 17 (discussing implementation of policy)], and

provide notice of [Corbis Slip at 16 (discussing quality of notice)]

a policy for dealing with subscribers who are repeat offenders; [Harlan] [Ellison at 1080] [Corbis Slip at 14 (discussing repeat offenders)] [Aimster] and

accommodate and not interfere with "standard technical measure" taken to protect copyrighted content. [17 U.S.C. § 512(i)]

Statutory Language: 17 U.S.C. § 512(i) Conditions for Eligibility.- (1) Accommodation of technology.- The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures.

For purposes of these defenses, a “service provider” is “a provider of online services or network access, or the operator of facilities thereof.” [17 U.S.C. § 512(k)(1)(B)]. This definition covers a broad range of Internet activities. [Aimster] [Henderickson v. Ebay] [Corbis] [Henderickson v. Amazon.com]

Where the service provider is an educational institution, see 17 U.S.C. § 512(e) which sets forth conditions for treating potential infringers as third parties distinct from the institutions.

Service providers are also immune from liability for wrongful takedowns. 17 U.S.C. § 512(g).

Many ISPs may have immunity, indemnity, and waivers of liability within their terms of service.

Note that in situations where the service provider does not fall under these provisions or elects not to participate in these defenses, the DMCA gives copyright owners rights to file for injunctions against service providers that would have the same effect as notice and take down. [17 U.S.C. § 512(j)]

Transmission

A network service provider has a defense to liability for the transmission of content where

• the service provider is "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." [17 U.S.C. § 512(k)(1)(A)]
• the infringing transmission was made by a person other than the service provider (third party content),
• to a person not determined by the service provider, and
• the network is only involved in the automatic transmission of the material and not involve any manipulation, replication (beyond the course of transmission) or interaction.

[17 U.S.C. § 512(a)] [Harlan] Note that the term "service provider" is a broad term. This is not restricted to commercial ISPs; this can mean libraries, community networks, or even WiFi hotspots. [Hendrickson v. eBay]

Storage or Hosting, Caching, and Search Engines

A service provider has a defense to liability for storage, caching, or providing a search engine [17 U.S.C. § 512(b)] where the service provider is "a provider of online service or network access, or the operator of facilities therefor." [17 U.S.C. § 512(k)(1)(B)]

A service provider has no obligation to monitor its service for infringing activity. [17 USC § 512(m)]

Storage or Hosting

Service providers which store or host content [17 U.S.C. § 512(c)(1)] on their systems will have a defense to liability where the service provider

"§ 512(c) "is clearly meant to cover more than mere electronic storage lockers." UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1088 (C.D. Cal. 2008) ("UMG I"). The relevant case law makes clear that the § 512(c) safe harbor extends to software functions performed "for the purpose of facilitating access to user-stored material." Id.; see Shelter Capital, 667 F.3d at 1031-35. Two of the software functions challenged here—transcoding and playback—were expressly considered by our sister Circuit in Shelter Capital, which held that liability arising from these functions occurred "by reason of the storage at the direction of a user." 17 U.S.C. § 512(c); see Shelter Capital, 667 F.3d at 1027-28, 1031; see also UMG I, 620 F. Supp. 2d at 1089-91; Io Group, 586 F. Supp. 2d at 1146-48. Transcoding involves "[m]aking copies of a video in a different encoding scheme" in order to render the video "viewable over the Internet to most users." Supp. Joint App'x I:236. The playback process involves "deliver[ing] copies of YouTube videos to a user's browser cache" in response to a user request. Id. at 239. The District Court correctly found that to exclude these automated functions from the safe harbor would eviscerate the protection afforded to service providers by § 512(c). Viacom, 718 F. Supp. 2d at 526-27." [Viacom Slip at 15 2nd Cir. 2012]

• has designated an agent for service of notices with the Library of Congress;
• lacks actual knowledge that material is infringing, or is not aware of facts or circumstances from which infringing activity is apparent; and
  • requiring specific knowledge of particular infringing activity, [UMG 1037 9th Cir. 2011] [Capitol Records Slip at 14 SDNY 2011] [Veoh 1108 CDCa 2009 ("[I]f investigation of `facts and circumstances' is required to identify material as infringing, then those facts and circumstances are not `red flags.'")]
  • Courts do not place the burden of determining whether materials are actually illegal on a service provider." [UMG 1038 9th Cir. 2011] [Perfect10 1114 9th Cir. 2007].
  • Willfully Blind: ""The principle that willful blindness is tantamount to knowledge is hardly novel." Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 110 n.16 (2d Cir. 2010) (collecting cases); see In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) ("Willful blindness is knowledge, in copyright law . . . as it is in the law generally."). A person is "willfully blind" or engages in "conscious avoidance" amounting to knowledge where the person "`was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.'" United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (quoting United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)); cf. Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S. Ct. 2060, 2070-71 (2011) (applying the willful blindness doctrine in a patent infringement case). Writing in the trademark infringement context, we have held that "[a] service provider is not . . . permitted willful blindness. When it has reason to suspect that users of its service are infringing a protected mark, it may not shield itself from learning of the particular infringing transactions by looking the other way." Tiffany, 600 F.3d at 109. The DMCA does not mention willful blindness. As a general matter, we interpret a statute to abrogate a common law principle only if the statute "speak[s] directly to the question addressed by the common law." Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009) (internal quotation marks omitted). The relevant question, therefore, is whether the DMCA "speak[s] directly" to the principle of willful blindness. Id. (internal quotation marks omitted). The DMCA provision most relevant to the abrogation inquiry is § 512(m), which provides that safe harbor protection shall not be conditioned on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i)." 17 U.S.C. § 512(m)(1). Section 512(m) is explicit: DMCA safe harbor protection cannot be conditioned on affirmative monitoring by a service provider. For that reason, § 512(m) is incompatible with a broad common law duty to monitor or otherwise seek out infringing activity based on general awareness that infringement may be occurring. That fact does not, however, dispose of the abrogation inquiry; as previously noted, willful blindness cannot be defined as an affirmative duty to monitor. See Aina-Marshall, 336 F.3d at 170 (holding that a person is "willfully blind" where he "was aware of a high probability of the fact in dispute and consciously avoided confirming that fact"). Because the statute does not "speak[] directly" to the willful blindness doctrine, § 512(m) limits—but does not abrogate—the doctrine. Accordingly, we hold that the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA." [Viacom Slip at 12 2nd Cir 2012]

• upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
  • See notice-and-take-down;
  • in other words, where an ISP relies in good faith on an errant notice, the ISP remains protected
  • "the basic operation of § 512(c) requires knowledge or awareness of specific infringing activity. Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it "acts expeditiously to remove, or disable access to, the material." 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to "take commercially reasonable steps" in response to a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the language of the statute, which requires "expeditious[]" action to remove or disable "the material" at issue. 17 U.S.C. § 512(c) (1)(A)(iii) " [Viacom slip p. 8 2nd Cir. 2012]
• 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;
  • financial benefit from merely hosting does not constitute a direct benefit.
  • the "right and ability to control" infringing activity under § 512(c)(1)(B) "requires something more than the ability to remove or block access to materials posted on a service provider's website." [Viacom Slip at 14 2nd Cir. 2012] [Wolk Slip at 21 SDNY 2012] MP3tunes, LLC, 2011 WL 5104616, at *14; accord ; UMG II, 665 F. Supp. 2d at 1114-15; Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1151 (N.D. Cal. 2008); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1110 (W.D. Wash. 2004), overruled on other grounds by Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir. 2010). [Perfect10 v Cybernet 1173 CDCa 2002 (the court found control where the service provider instituted a monitoring program by which user websites received "detailed instructions regard[ing] issues of layout, appearance, and content." )]

Caching

A service provider that engages in caching [17 U.S.C. § 512(b)] of third party content will not be liable if the provider

• does not modify the content or modify any access restrictions to the content, and the caching is an automatic technical process,
• complies "with rules concerning the refreshing, reloading, or other updating of the material" as specified by the creator of the material,"
• does not interfere with technology designed to measure hits, and
• expeditiously removes or blocks any content, upon receipt of proper notice, that the content has been (or ordered to be) removed or blocked at the original server (Notice and Take Down).

Information Location Tools

Operators of search engines, hyperlinks, online directories and other information location tools will not be liable for linking to infringing material where the provider

• lacks knowledge that the content is infringing,
• does not receive a financial gain from the content if the provider has control over the content, and
• acts expeditiously to remove links to known infringing material (Notice and Take Down). [17 U.S.C. § 512(d)]

See also Parker v Google (no liability found where Google automatically and temporarily stores data)