As related in my last post, DMCA sections 512(c) and 512(d) have heightened requirements before copyright infringement liability protection adheres to service providers who support user generated content (UGC). The requirements for the four categories of safe harbors under § 512 can be summarized as follows:
|Provider||Monitoring||Red Flag Test||Notice/Takedown|
|ISP & OSP||not required||not applicable||not applicable|
|OSP||not required||not applicable|
|(c) Hosting (UGC)||OSP||not required||does apply|
|(d) Linking (search)||OSP||not required||does apply|
Let’s cover one key element of these requirements now: Knowledge.
Online Service Providers (OSPs) are subject to disqualification from both the § 512(c) and § 512(d) safe harbors based on actual or red flag knowledge of UGC containing infringing material. A service provider must demonstrate that it does not have actual knowledge that an activity using the material stored on its website is infringing nor an awareness of facts or circumstances from which infringing activity is apparent. Alternatively, the service provider must show that it expeditiously removed or disabled access to the problematic material upon obtaining knowledge or awareness of infringing activity.
A service provider does not have a duty to monitor its service or affirmatively seek facts indicating infringing activity. Furthermore, liability does not attach to a service provider’s general awareness that there are infringements, but rather to that provider’s actual or constructive knowledge of specific and identifiable infringements of individual items.
Regarding constructive knowledge, at issue is not whether a service provider had a general awareness that a particular type of item may be easily infringed; but whether the provider was aware of, but chose to ignore, red flags of blatant copyright infringement. If investigation of “facts and circumstances” is required to identify material as infringing, then those facts and circumstances are not “red flags.” In determining whether the service provider was aware of a red flag, the subjective awareness of the service provider of the facts or circumstances in question must be determined. In deciding whether those facts or circumstances constitute a red flag, a court must consider whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances.
Once a service provider obtains actual knowledge or awareness of facts or circumstances from which infringing material or activity on the service provider’s system or network is apparent, the service provider does not lose liability protection if it acts expeditiously to remove or disable access to the infringing material. A service provider wishing to benefit from the safe harbor protections under § 512(c) or § 512(d) must “take down” or disable access to infringing material residing on its system or network of which it has actual knowledge or that meets the red flag test, even if the copyright owner or its agent does not notify it of a claimed infringement. Because the factual circumstances and technical parameters may vary from case to case, the DMCA does not identify a uniform time limit for expeditious action.
Next week, this blog will cover a second key element of the DMCA’s heightened requirements: Control and Benefit.