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.
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…