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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The Vimeo Case and the DMCA: What Your Employees Know Can Hurt You

Oh, Those Pesky, Pesky Employees!

From a legal* point of view, hardly anything good ever comes out of the employer-employee relationship**, when you think about it. Wrongful termination suits, reams of paperwork to create a “paper trail” to counter wrongful termination suits, making oral promises the company can’t keep, entering into contracts the company isn’t aware of, getting into accidents in the course of their employment (and making the company liable), and so on and on.

* Of course, hiring is based on need. Nobody ever said, “Oh, I’m really desperate for some help, and there’s lots of it, but I’m afraid of the legal ramifications!” Which isn’t to say there aren’t transaction costs to hiring employees.

** The one exception I could think of: works created by employees in their course of their employment are considered to have been created by the employer. Not that this “work made for hire” doctrine isn’t without controversy.

We can add one more thing to the list: when your employees are using a service that your company provides. Let’s say your company is in the business of hosting and publicly performing uploaded content, which might or might not infringe copyright. And let’s…

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In Grooveshark’s Defense: Red Flags and Financial Benefit (Part 7 in our Online Music Services Series)

Why Grooveshark Might Not Swim into the DMCA Safe Harbor

In our last blog post, we examined two of the four main requirements for Grooveshark’s DMCA safe-harbor defense.  Those requirements were (1) having and implementing a repeat-infringer policy, and (2) compliance with the notice-and-takedown procedure.  We gave Grooveshark a pass on those two requirements.  We now look at the two remaining requirements:  (3) lack of actual knowledge or “awareness” and (4) lack of direct financial benefit.  We think these two requirements will be much trickier for Grooveshark.

Knowledge and “Awareness”

To qualify for DMCA safe-harbor protection, you (as the website operator) must (1) not have actual knowledge of the infringement,* (2) not be “aware of facts or circumstances” that make the infringement apparent, and (3) “expeditiously” stop the infringement, once you are obtain such knowledge or “awareness.”

*  Want to hear something weird?  If someone sends you a defective DMCA takedown notice, but it includes enough information to put you on notice that infringing activity is going on, you are not deemed to have actual knowledge or even “awareness” of the infringement.  Although this is illogical, there’s a good reason for it.  Otherwise, there’d be no reason for copyright owners to…

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