Compliance With Notice and Takedown Provisions of the DMCA
In 17 U.S.C. § 512, subsections (c) and (d), special notice and takedown provisions are outlined for OSPs that host copyrighted materials on their platform or contain links to copyrighted material on their platforms, respectively. If these particular OSPs comply with the notice and takedown provisions, then copyright holders’ claims will likely fail. The provisions include 1) not benefiting financially from the alleged infringement, 2) not having actual or red flag knowledge of infringements, 3) quickly removing known infringements, and 4) writing, adopting, posting on its website and reasonably implementing a repeat infringer policy.[i] Particularly, copyright holders find the most room for litigation on the second and fourth issues.
To receive safe harbor, a defendant must be unaware of any facts or circumstances that make it apparent that a user is using its system to infringe on copyrights. This means a defendant will need to show it lacked both actual and red flag knowledge of the infringement. Having actual knowledge turns on whether the provider subjectively knows of specific infringements, while having red flag knowledge “turns on whether the provider was subjectively aware of facts that would [make] specific infringement[s] ‘objectively’ obvious to a reasonable person.”[ii] Liability under this factor is limited in that OSPs are not required to monitor or affirmatively seek out infringing activity. Nor are they required to act on a general knowledge that rampant infringement takes place on their platform. Having a general knowledge of these activities will not disqualify an OSP from protection, whereas a specific knowledge with no remedial response will.
In Disney Enterprises, the court found that Hotfile had actual or red flag knowledge of the infringement. Thus, Hotfile was forced to assume vicarious copyright infringement liability. Likewise, in Columbia Pictures Industries, Inc. v. Fung, the court found that Fung had red flag knowledge of infringement. The court held that Columbia Pictures proved Fung’s inducement liability.
Repeat Infringer Policies
Another issue commonly examined by courts to determine infringement liability is repeat infringer policies. Recent cases highlight that noncompliance with this requirement can be fatal to the OSP’s case. Often, the same users, whether under different usernames or the same username, repeatedly post copyrighted materials on the OSP’s platform. By “adopt[ing] and reasonably implement[ing]” a repeat infringer policy, OSPs could avoid secondary liabilities.[iii] In Mavrix Photographs LLC v. Sandra Rose LLC, the Central District of California looked for these policies to provide for termination of subscribers and account holders who were repeat infringers.[iv] Summary judgment was granted to Mavrix Photographs when the court found no evidence of a policy of this sort. Similarly, in Disney Enterprises, Hotfile was found ineligible for safe harbor and ultimately liable for vicarious copyright infringement because it failed to bar repeat infringers. In a similar case, OSP Grande Communications Network LLC was denied safe harbor because the company failed to act in the face of ongoing infringement by its subscribers.[v]
Some courts have been more lenient. The Ninth Circuit in Ventura Content, Ltd. v. Motherless, Inc. allowed website operator Motherless to avail itself of DMCA safe harbor.[vi] Motherless did not have an extensive written repeat infringer policy but was found to have safe harbor because the operator monitored and deleted thousands of infringing accounts and enforced Motherless’ limited policy.