Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Also, There Really Is Such Thing as Copyright Inducement
Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.
The rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.
The Red-Flagged Sapsucker
I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective knowledge because it becomes too easy…