A Legal Blog by Aaron | Sanders, PLLC

RightsCorp’s Lawsuit Against Cox Is Only Partly About Repeat Infringers

RightsCorp Has Some High Hurdles to Clear Before it Even Gets to Repeat Infringers

Typical. I read about a truly significant lawsuit, start blogging about what is obviously the main issue—an issue that has significance beyond the lawsuit—only to discover in analyzing the pleadings that the lawsuit isn’t all it’s cracked up to be.

RightsCorp: A Business Model in Trouble…

You’ve heard of the lawsuit against the major ISP, Cox Communications, for violating the repeat-infringer requirement of the DMCA? (Here’s the complaint.) If not, let me ’splain. No, there is too much. Let me sum up:

There is a company called RightsCorp that is in the business of enforcing copyrights for others. They make money by monitoring BitTorrent networks, finding files whose copyrights belong to its clients, identifying the IP address (and timestamp) and sending short little notices to the ISP that are supposed to be forwarded to the customer. The short little notice says the usual things that lawyers say in cease-and-desist letters that aren’t lies but don’t tell the whole copyright story, to wit: (a) you are a copyright infringer; (b) you “could be” liable for up to $150,000 per infringement; (c) your ISP service “could be suspended”; and (d) the actual…

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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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Hotfile on the Internet- What You Don’t Know Can Hurt Your DMCA Safe Harbor

On the Importance of Knowing Just Enough

As we all know by now (quick primer here), the DMCA safe harbor is a marvelous, marvelous thing for internet-related system operators—not just YouTube, but any website that interacts much with its users—but that marvelous protection can be lost if you’re not careful. One way to lose it is to have actual or “red-flag” knowledge of infringing activity on the network. The tendency among service providers, therefore—and something of a perverse incentive—is to remain as ignorant as possible of user activities on the system, unless forced to pay attention via a DMCA takedown notice.

Upload, Infringe, Repeat

But, as the recent Hotfile case demonstrates, complete ignorance isn’t good for your DMCA safe harbor. That’s because you have to promulgate and reasonably implement a policy that terminates repeat infringers. The Hotfile court held that implementing a repeat-infringer policy involves collecting some information.

As I’ve explained here, here and especially here, these repeat-infringer requirements raise several difficult questions that have not be adequately addressed by the courts. In Hotfile, the main question was: what is the minimum you have to do to have “reasonably implemented” a repeat-infringer policy? Folded into that question, however, was a knottier question: when…

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Who Needs Guidance from Above? District Court Finds its Own Way in Viacom v. YouTube

But Is the Trail Worth Following?

Well, that wasn’t so hard.

As has been chronicled in this blog (here and especially here), the district court in the Viacom v. YouTube case had originally granted summary judgment to YouTube, but the Second Circuit decided that the district court was too quick to make a couple of important factual findings, had applied the wrong law in one instance and had overlooked a legal doctrine in another instance. So it punted the case back to the district court with very specific instructions about what it must do—but without giving it much in the way of actual legal guidance.

I didn’t say so explicitly, but I was concerned that, with the lack of guidance, the district court would freeze up, afraid that it’ll just get reversed and remanded again, no matter what it did. I’m glad to say that the district court was up to the challenge, and almost one year after the remand, it issued a confident, firm decision (once again in YouTube’s favor). Your mileage may vary, but at least we’ll get this kicked back up to the Second Circuit very quickly.

Pictured: the District Court Judge following the map provided…


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You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law

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…


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