Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

And The DMCA is BACK!

And the Pink is back! Hey, I’ve been busy. But this is big, so it’s worth writing about.

Yesterday, the Ninth Circuit ruled that the DMCA (the Digital Millennium Copyright Act) indeed protects user-generated-content sites, or Veoh Networks in this particular case, from liability for copyright claims where the evidence showed that the UGC site did not know of the infringement and could not control it.

The plaintiff in that case, Universal Music Group Inc. cannot be too happy. I would suspect a further appeal, especially because the 9th Circuit’s ruling follows: (a) it’s earlier ruling on this issue which reached the same conclusion; (b) the Second Circuit’s ruling in Viacom v. YouTube which reached a different conclusion on similar facts; and (c) a rehearing on this issue in light of the Second Circuit’s conflicting ruling.

That’s a lot of legal ping-pong, but here’s what it means for owners of sites that rely on user generated content (at least in the 9th Circuit, and at least for now):

Internet service providers who fail to seek and destroy (OK, remove) allegedly infringing materials of which the ISP does not specifically know will NOT lead to liability; the safe harbor provision of the DMCA will render these ISP safe. In the harbor. Which is why it’s called a “safe harbor.” As opposed to “we’re-gonna-nail-your-ass-no-matter-what-the-damn-statute-says,” which is not nearly as catchy but does have some appeal especially after a couple of cups of coffee.

For those just back from Pluto, as the name implies, the safe harbor provision of the DMCA states that online service providers cannot be held liable for copyright infringement by users where the OSP does not have actual knowledge of the infringing activity, or is unaware of any other information that would make the fact that such infringement exists readily apparent. See 17 U.S.C. Section 512 I

In many ways, this is simply fair, although it is also a huge a departure from the typical approach to copyright infringement, which holds that even innocent infringers are liable for infringement. See Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000).

It’s interesting to note that the Court in Veoh did not trash the Second Circuit’s ruling in YouTube. Rather, it held that the Second Circuit was correct in its ruling, but went on to say that even under the Second Circuit’s interpretation of the DMCA, Veoh was shielded from liability for its hosting of the copyrighted music videos posted its users. Specifically, the Court reasoned that Veoh promptly removed infringing material when it became aware of specific instances of infringement,” and that under the plain language of the statute, service providers who “do not specifically know [infringing materials] should not suffer the loss of safe harbor protection” simply because they have not sought those out and removed them without notice. “Merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement,” the court said. Rather, a service provider must know of the infringement and have the ability to control it. What does this mean? That a service provider must “exert substantial influence on the activities of users.” Simply having the power to delete infringing content is not enough.

That’s pretty powerful language, and another reminder of the state of the universe for content creators.

Jonathan Pink is a business and intellectual property attorney at Bryan Cave, LLP where he tries cases for rock stars, film makers and media companies. He leads the firm’s Entertainment and Media Practice and can be reached at jonathan.pink@bryancave.com or by calling 310-576-2258.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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