Take Down Duties for Copyrighted Material

Ben Sheffner writes about the recent Viacom v. YouTube case, which he finds extremely disappointing in its dodging of the question of what, besides an official takedown notice, can require an online content provider to remove copyrighted material.

Quick background: the DMCA requires that a content provider, such as YouTube, Facebook, Flickr, etc., remove copyrighted content if: 1) it has “actual knowledge” the material is infringing; or 2) it is “aware of facts or circumstances from which infringing activity is apparent.”  The first situation arises easily: a copyright owner sends a takedown notice complying with the DMCA’s substantive requirements, and the material is removed (generally).  Result: no liability for the infringing work.

What leaves Ben, courts, and countless others baffled is the circumstance in which the second situation would arise.  What are facts and circumstances which show infringing activity?  Apparently, material labeled “illegal” or “stolen” is not sufficient – in the context of pornographic photographs.  Ben questions “whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.”  I think so.

Yeah, that situation is far-flung.  But the “illegal” or “stolen” descriptors on porn run parallel to the content – they increase the excitement value and more likely describe the source of the pictures rather than the status of the copyright.  A thin distinction, but an important one.

Imagine a video that gains global attention.  Any video: Lady Gaga’s latest music video, in its entirety, is posted by CpyrghtAbUsr.  For whatever reason, this video soars to the top of YouTube.  It overwhelms their transmission lines.  Corporate decides to dedicate huge amounts of bandwidth for this single video.  The Today Show covers the video.  Lady Gaga herself refers to it, but for some reason never sends a takedown notice.  Would this qualify as a red flag?

Perhaps this is a ridiculous situation, but that may be the very nature of the case that finally forces a court to decide what satisfies the test.  Until then, the judiciary may continue to dodge and weave, and we’ll be left without meaningful interpretation.