“By requiring knowledge of specific infringement, courts have effectively read the red flag knowledge requirement out of the statute and instead essentially require a user to confess to infringing acts before service providers have any duty.”
On May 21, the U.S. Copyright Office published a report on Section 512 of Title 17 of the U.S. Code, which governs limitations on copyright liability to materials published online. Safe harbor provisions in Section 512, which were enacted as part of the Digital Millennium Copyright Act (DMCA), have allowed online service providers to operate tech platforms without facing liability for infringing content posted on those platforms. While the Copyright Office acknowledges that the careful balance intended to be struck by Section 512 has become unbalanced, to the detriment of rights holders, the report only recommends that Congress fine-tune certain aspects of Section 512 to restore this balance of competing interests.
Modernizing the DMCA has been a topic of much discussion in the months since Sen. Thom Tillis (R-NC), Chairman of the Senate IP Subcommittee, announced last December that the Subcommittee would hold several hearings to evaluate the current status of the DMCA and determine how the law should be amended in response to technological developments. Section 512 was debated during a Senate IP Subcommittee hearing this February in which panel witnesses discussed problems stemming from how courts have interpreted various provisions of the statute. The latest in this series of hearings was held virtually yesterday, on the subject of the “Scope of Music Rights within the DMCA.”
Courts Allow Casual Implementation of Unwritten Repeat Infringer Policies
The recommendations laid out by the Copyright Office in the Section 512 Report are targeted at provisions that have been interpreted in ways that have allegedly flouted Congressional intent. One such area of contention surrounds the definition of the term “repeat infringer” which appears in Section 512(a)(1)(A). Under this provision, service providers must adopt a policy addressing the activities of repeat infringers on their platform to qualify for Section 512 safe harbor. Service providers have argued that the Fourth Circuit in BMG Rights Management v. Cox Communications (2018) misconstrued this term, expanding it to users who have allegedly committed multiple acts of infringement, not only those users whose prior infringing acts have been adjudicated by a court.
On the other hand, court decisions have led to concerns that service providers could satisfy statutory requirements on implementing a repeat infringer policy without actually providing a written policy to users. The Ninth Circuit in Venture Content v. Motherless (2018), for example, found that a service provider’s “unsystematic and casual implementation” of a repeat infringer policy nonetheless satisfied the requirement that service providers adopt and reasonably implement such a policy. Although the Copyright Office agreed that service providers should have some leeway in adopting and implementing policies, the agency believes that courts have been overly lenient in a way that has undermined the deterrence value of such policies.
Deciphering Knowledge Requirements and Service Provider Duties Under Section 512
Another area where the Copyright Office believes that Congressional fine-tuning can address problematic interpretations of Section 512 in case law surrounds the knowledge requirements affecting a service provider’s liability based on its awareness of infringing acts. Legislative history surrounding Section 512 indicates that Congress intended a “red flag” knowledge standard extending liability to service providers for infringing acts apparent to a reasonable person. Section 512 assesses liability to service providers who, without actual knowledge of infringing activities, are aware of “facts or circumstances from which infringing activity is apparent.”
Although the Second Circuit attempted to delineate actual knowledge from red flag knowledge in the Section 512 context in Viacom International v. YouTube (2012), the Copyright Office believes that the court improperly interpreted the red flag knowledge requirement as consisting of knowledge of specific and identifiable infringements. “Defining red flag knowledge in such a manner is not compelled by either the wording of the statute or the legislative history,” the report reads. Section 512(m) bars any affirmative duty in seeking out infringement, but Congressional intent surrounding the red flag knowledge requirement creates some limited duty of inquiry, which courts haven’t required of service providers when applying the statute. By requiring knowledge of specific infringement, courts have effectively read the red flag knowledge requirement out of the statute and instead essentially require a user to confess to infringing acts before service providers have any duty. Although the Copyright Office advocates for a reasonable standard that takes into account relevant characteristics about the size and technical proficiency of a service provider, the agency recommended further defining a service provider’s duty to act under red flag knowledge.
The Copyright Office also asked Congress to look at the application of the willful blindness standard, a common law doctrine which equates deliberate blindness of infringing activity with actual knowledge. Courts have also applied a specificity requirement to this standard, requiring deliberate avoidance of specific infringing acts and not general avoidance. Clarifying the interaction between willful blindness and Section 512(m)’s bar against affirmative duty would be useful, the report stated. Knowledge requirements imposed by Section 512(c)(1)(B), which covers vicarious liability for service providers who have the right and ability to control infringing activity by users, should also garner a second look from Congress to see if heightened standards applied by courts comport with Congressional intent. Under Viacom, courts require a showing of something more than the right and ability to control infringing activity, a requirement abrogating the common law standard of vicarious liability, which Congress may not have intended.
Questions Surrounding Expansive Interpretation of Eligibility Requirements
While Congress intended the eligibility requirements for different categories of online service providers to be interpreted rather broadly, the Section 512 report suggests that Congress take another look at eligibility under Section 512(c). Thanks to technological progress since the passage of the DMCA, the interpretation of copyright liability “by reason of the storage” has expanded to include many hosting activities which may not have been contemplated by Congress. Courts have found that the Section 512(c) safe harbor applies to processes that facilitate infringement but are automated and therefore only commit infringement “by reason of the storage.” Such reasoning allowed YouTube in Viacom to escape liability for its transcoding and playback services, and may provide a broader safe harbor under Section 512(c) than originally intended.
While eligibility requirements under the Section 512(b) and 512(d) safe harbors have been relatively uncontroversial, the Copyright Office questioned whether the expansive interpretation of Section 512(a)’s eligibility requirements comports with Congressional intent. For example, the Seventh Circuit in In re Aimster Copyright Litigation (2003) found that peer-to-peer file sharing systems operating on top of instant messaging services qualified for safe harbor under Section 512(a). The Seventh Circuit reasoned that, while Congress didn’t contemplate peer-to-peer services in passing the DMCA, Section 512(a)’s shield against liability for infringement caused by the transmission of or providing connections for material through a system or network should be applied broadly. The Copyright Office, however, believed that Congress’ original intent was that this safe harbor should be applied to service providers who provide a mere conduit to the Internet.
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