A Legal Blog by Aaron | Sanders, PLLC

Is it Time to Furl the DMCA Red Flag?

Did the Second Circuit Just Kill “Red Flag” Knowledge?

Oh, DMCA caselaw, I can never quit you. Even though you really don’t affect my practice much, you’ve become my hobby, such that I can’t resist commenting on every appellate-level decision involving you.

The Basics of “Red Flag” Knowledge

The basics of the DMCA safe harbor are that, if you are an “internet service provider,” you are immune to claims of (civil) copyright infringement under four different circumstances—there are thus four different flavors of DMCA safe harbor—if you meet qualifications specific to the flavor you seeking protection under, and you have and reasonably implement a repeat-infringer policy. The most popular flavor is that the content you are accused of infringing was placed on your computer system at the “direction” of one of your users. This flavor is known as § 512(c). This covers a wide range of common internet services, from comments, to videos uploaded to YouTube or Vimeo, or even stuff stored in the “Cloud.” Although Congress had in mind the first and last of these scenarios, it’s been user-uploaded content to public sites, like YouTube, where the action has been.

To qualify for protection under § 512(c), you need to prove three…

In Soviet Union, you don't see red flags—red flags see YOU! And deprive you of your safe harbors!

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My Response to Prof. Menell Part 3-Supreme Court Disrepsects Legislative History in Kirtsaeng

Kirtsaeng’s Near-Contempt for 1960’s-Era Legislative Materials

This post continues my response to Prof. Menell’s contention that, based on the Supreme Court’s use of 1960’s-era legislative materials to construe the Copyright Act of 1976 (the “1976 Act”), it is appropriate to use such materials to help resolve the knotty question of whether merely making a copyrighted work available (for download or whatever) violates the distribution right. I had previously criticized Prof. Menell for relying on such materials when courts have generally limited the use of legislative materials to those generated by the Congress that enacted the legislation in question. For more background, see my first post in this series.

After reading the Supreme Court decisions cited by Prof. Menell, I came to the conclusion that most of them are irrelevant, referencing the 1960’s-era materials in passing or for context, but three of them—CCNV, Kirtsaeng and Stewart v. Abend—had something of relevance to say on the subject. Last time, I discussed the decision that most supports Prof. Menell’s, view, CCNV. This time, I’ll discuss the decision that most supports my view, Kirtsaeng.

At a minimum, CCNV seems to accept the possibility 1960’s era legislative materials could be used to construe the Copyright Act of…


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My Response to Prof. Menell, Part 2: Community for Creative Non-Violence

(Part 2 of 5) The Fine Line Between an Alternative Basis and Simple Dicta

The question we’re asking is whether it’s appropriate to rely on legislative materials generated by Congresses who did not enact but did oversee the drafting of the legislation in question. Prof. Peter Menell thinks it is, at least where the Copyright Act of 1976 (“1976 Act”) is concerned. I’m pretty sure it’s not. The question matters because Prof. Menell’s re-write of a crucial passage of Nimmer on Copyright relies on such materials. I have criticized this re-write on several grounds, including this unexamined reliance on pre-enactment legislative materials. See the last post for further details.

Ordinarily, you can’t rely on pre-enactment legislative materials. Ordinarily, when this issue arises, Congress has drafted but failed to pass a bill, but the next Congress manages to pass substantially the same bill. This is not unusual. In these situations, the courts have been clear that it is inappropriate to rely on the previous Congress’ legislative materials when construing the statute. Normally, this doesn’t pose a problem because the later (enacting) Congress will simply adopt the previous Congress’ work—why reinvent the wheel?

But the 1976 Act was not typical. First, it might’ve been…

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My Response to Prof. Menell Regarding the Propriety of Relying on Pre-Enactment Legislative History of the Copyright Act of 1976

Prof. Menell Comments on 15% of My Article; I Respond.

This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:
Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.
Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning against the existence of a “making available” right…

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Is Nimmer & Menell’s “Lost Ark” of Copyright Just a Prop?

Spoiler: Yes.

So, I’m talking about this article of mine that was kindly published by the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”). See part I here. The issue has to do with one of copyright law’s “exclusive rights”—i.e., things only the copyright owner and his or her authorized licensees may do with a copyrighted work—the right to distribute copies of the work to the public, which we’ll just call the “distribution right.” The question is whether the distribution right includes only consummated acts of distribution, or can also include attempts and offers to distribute.* Most (but not all) courts have held that the right is limited to consummated distributions, but rights holders would very much prefer the broader interpretation. The issue used to be academic, but with file-sharing, it matters now because it’s very difficult to detect consummated downloads**, but it’s easy to prove that the unlicensed works were “made available” for download on the file-sharer’s computer.

* Remember that the distribution right has an important exception: the first sale doctrine. Once you legally obtain a physical embodiment of the work, you may dispose of it as you see fit.

** Putting aside what I have…

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