throbber
Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 1 of 30
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`----------------------------------------X
`VIACOM INTERNATIONAL INC., COMEDY
`PARTNERS, COUNTRY MUSIC TELEVISION,
`INC., PARAMOUNT PICTURES CORPORATION,
`and BLACK ENTERTAINMENT TELEVISION LLC,
`
`
`
`
`Plaintiffs, 07 Civ. 2103 (LLS)
`
`-against-
`
`
`
`
`
`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE, INC.,
`Defendants,
`
`
`
`
`----------------------------------------X OPINION AND ORDER
`THE FOOTBALL ASSOCIATION PREMIER
`LEAGUE LIMITED, et al., on
`behalf of themselves and all
`others similarly situated,
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE, INC.,
`Defendants.
`
`
`
`
`----------------------------------------X
`
`
`
`
`
`Defendants move for summary judgment that they are
`entitled to the Digital Millennium Copyright Act’s (“DMCA”), 17
`U.S.C. § 512(c), “safe harbor” protection against all of
`plaintiffs’ direct and secondary infringement claims, including
`claims for “inducement” contributory liability, because they had
`insufficient notice, under the DMCA, of the particular
`infringements in suit.
`
`
`
`
`
`07 Civ. 3582 (LLS)
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 2 of 30
`
`Plaintiffs cross-move for partial summary judgment
`
`that defendants are not protected by the statutory “safe harbor”
`provision, but “are liable for the intentional infringement of
`thousands of Viacom’s copyrighted works, . . . for the vicarious
`infringement of those works, and for the direct infringement of
`those works . . . because: (1) Defendants had ‘actual
`knowledge’ and were ‘aware of facts and circumstances from which
`infringing activity [was] apparent,’ but failed to ‘act[]
`expeditiously’ to stop it; (2) Defendants ‘receive[d] a
`financial benefit directly attributable to the infringing
`activity’ and ‘had the right and ability to control such
`activity;’ and (3) Defendants’ infringement does not result
`solely from providing ‘storage at the direction of a user’ or
`any other Internet function specified in section 512.” (See the
`parties’ Notices of Motion).
`
`Resolution of the key legal issue presented on the
`parties’ cross-motions requires examination of the DMCA’s “safe
`harbor” provisions, 17 U.S.C. § 512(c), (m) and (n) which state:
` (c) Information residing on systems or networks at
`direction of users.—
` (1) In general.—A service provider shall not be
`liable for monetary relief, or, except as provided in
`subsection (j), for injunctive or other equitable
`relief, for infringement of copyright by reason of the
`storage at the direction of a user of material that
`resides on a system or network controlled or operated
`by or for the service provider, if the service
`provider—
`
`
`
`
`- 2 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 3 of 30
`
` (A)(i) does not have actual knowledge that the
`material or an activity using the material on the
`system or network is infringing;
` (ii) in the absence of such actual knowledge,
`is not aware of facts or circumstances from which
`infringing activity is apparent; or
` (iii) upon obtaining such knowledge or
`awareness, acts expeditiously to remove, or
`disable access to, the material;
` (B) does not receive a financial benefit
`directly attributable to the infringing activity,
`in a case in which the service provider has the
`right and ability to control such activity; and
` (C) upon notification of claimed infringement
`as
`described
`in
`paragraph
`(3),
`responds
`expeditiously to remove, or disable access to,
`the material that is claimed to be infringing or
`to be the subject of infringing activity.
`
`(2) Designated agent.—The limitations on liability
`established in this subsection apply to a service
`provider only if the service provider has designated
`an agent to receive notifications of claimed
`infringement described in paragraph (3), by making
`available through its service, including on its
`website in a location accessible to the public, and by
`providing to the Copyright Office, substantially the
`following information:
`
`(A) the name, address, phone number, and
`electronic mail address of the agent.
`(B) Other contact information which the
`Register
`of
`Copyrights
`may
`deem
`appropriate.
`The Register of Copyrights shall maintain a current
`directory of agents available to the public for
`inspection, including through the Internet, in both
`electronic and hard copy formats, and may require
`payment of a fee by service providers to cover the
`costs of maintaining the directory.
`
`
`
`
`
`
`
`
`- 3 -
`
`
`
`
`
`
`
`
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 4 of 30
`
` (3) Elements of notification.—
` (A) To be effective under this subsection, a
`notification of claimed infringement must be a
`written communication provided to the designated
`agent of a service provider that includes
`substantially the following:
`
` (i) A physical or electronic signature
`of a person authorized to act on behalf of
`the owner of an exclusive right that is
`allegedly infringed.
` (ii) Identification of the copyrighted
`work claimed to have been infringed, or,
`if multiple copyrighted works at a single
`online site are covered by a single
`notification, a representative list of
`such works at that site.
` (iii) Identification of the material
`that is claimed to be infringing or to be
`the subject of infringing activity and
`that is to be removed or access to which
`is to be disabled, and information
`reasonably sufficient to permit the
`service provider to locate the material.
` (iv) Information reasonably sufficient
`to permit the service provider to contact
`the complaining party, such as an address,
`telephone number, and, if available, an
`electronic mail address at which the
`complaining party may be contacted.
` (v) A statement that the complaining
`party has a good faith belief that use of
`the material in the manner complained of
`is not authorized by the copyright owner,
`its agent, or the law.
` (vi) A statement that the information in
`the notification is accurate, and under
`penalty of perjury, that the complaining
`party is authorized to act on behalf of
`the owner of an exclusive right that is
`allegedly infringed.
`
`- 4 -
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 5 of 30
`
`
` (B)(i) Subject to clause (ii), a notification
`from a copyright owner or from a person
`authorized to act on behalf of the copyright
`owner that fails to comply substantially with the
`provisions of subparagraph (A) shall not be
`considered under paragraph (1)(A) in determining
`whether a service provider has actual knowledge
`or is aware of facts or circumstances from which
`infringing activity is apparent.
` (ii) In a case in which the notification that
`is provided to the service provider’s designated
`agent fails to comply substantially with all the
`provisions of subparagraph (A) but substantially
`complies with clauses (ii), (iii), and (iv) of
`subparagraph (A), clause (i) of this subparagraph
`applies only if the service provider promptly
`attempts to contact the person making the
`notification or takes other reasonable steps to
`assist in the receipt of notification that
`substantially complies with all the provisions of
`subparagraph (A).
`
`
`
`
`
`* * *
`
`
`
` (m) Protection of privacy.—Nothing in this
`section shall be construed to condition the
`applicability of subsections (a) through (d) on—
` (1) a service provider monitoring its
`service or affirmatively seeking facts
`indicating infringing activity, except to
`the extent consistent with a standard
`technical
`measure
`complying
`with
`the
`provisions of subsection (i); or
`
` (2) a service provider gaining access to,
`removing, or disabling access to material in
`cases in which such conduct is prohibited by
`law.
`
` (n) Construction.—Subsections (a), (b), (c),
`and (d) describe separate and distinct functions
`for purposes of applying this section. Whether a
`
`
`
`
`
`- 5 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 6 of 30
`
`service provider qualifies for the limitation on
`liability in any one of those subsections shall
`be based solely on the criteria in that
`subsection, and shall not affect a determination
`of whether that service provider qualifies for
`the limitations on liability under any other such
`subsection.
`
`Defendant YouTube, owned by defendant Google, operates
`
`a website at http://www.youtube.com onto which users may upload
`video files free of charge. Uploaded files are copied and
`formatted by YouTube’s computer systems, and then made available
`for viewing on YouTube. Presently, over 24 hours of new video-
`viewing time is uploaded to the YouTube website every minute.
`As a “provider of online services or network access, or the
`operator of facilities therefor” as defined in 17 U.S.C. §
`512(k)(1)(B), YouTube is a service provider for purposes of §
`512(c).
`From plaintiffs’ submissions on the motions, a jury
`
`could find that the defendants not only were generally aware of,
`but welcomed, copyright-infringing material being placed on
`their website. Such material was attractive to users, whose
`increased usage enhanced defendants’ income from advertisements
`displayed on certain pages of the website, with no
`discrimination between infringing and non-infringing content.
`
`Plaintiffs claim that “tens of thousands of videos on
`YouTube, resulting in hundreds of millions of views, were taken
`unlawfully
`from
`Viacom’s
`copyrighted
`works
`without
`
`
`
`- 6 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 7 of 30
`
`authorization” (Viacom Br., Dkt. No. 186, p. 1), and that
`“Defendants had ‘actual knowledge’ and were ‘aware of facts or
`circumstances from which infringing activity [was] apparent,’
`but failed to do anything about it.” (Id. at 4) (alteration in
`original).
`
`However, defendants designated an agent, and when they
`received specific notice that a particular item infringed a
`copyright, they swiftly removed it. It is uncontroverted that
`all the clips in suit are off the YouTube website, most having
`been removed in response to DMCA takedown notices.
`
`Thus, the critical question is whether the statutory
`phrases “actual knowledge that the material or an activity using
`the material on the system or network is infringing,” and “facts
`or circumstances from which infringing activity is apparent” in
`§ 512(c)(1)(A)(i) and (ii) mean a general awareness that there
`are infringements (here, claimed to be widespread and common),
`or rather mean actual or constructive knowledge of specific and
`identifiable infringements of individual items.
`
`
`1.
`Legislative History
`
`
`
`The Senate Committee on the Judiciary Report, S. Rep.
`No. 105-190 (1998), gives the background at page 8:
`
`
`
`- 7 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 8 of 30
`
` Due to the ease with which digital works can be
`copied
`and
`distributed
`worldwide
`virtually
`instantaneously, copyright owners will hesitate to
`make their works readily available on the Internet
`without reasonable assurance that they will be
`protected against massive piracy. Legislation
`implementing the treaties provides this protection and
`creates the legal platform for launching the global
`digital on-line marketplace for copyrighted works. It
`will
`facilitate
`making
`available
`quickly
`and
`conveniently via the Internet the movies, music,
`software, and literary works that are the fruit of
`American creative genius. It will also encourage the
`continued growth of the existing off-line global
`marketplace for copyrighted works in digital format by
`setting strong international copyright standards.
` At the same time, without clarification of their
`liability, service providers may hesitate to make the
`necessary investment in the expansion of the speed and
`capacity of the Internet. In the ordinary course of
`their operations service providers must engage in all
`kinds of acts that expose them to potential copyright
`infringement liability. For example, service
`providers must make innumerable electronic copies by
`simply transmitting information over the Internet.
`Certain electronic copies are made in order to host
`World Wide Web sites. Many service providers engage
`in directing users to sites in response to inquiries
`by users or they volunteer sites that users may find
`attractive. Some of these sites might contain
`infringing material. In short, by limiting the
`liability of service providers, the DMCA ensures that
`the efficiency of the Internet will continue to
`improve and that the variety and quality of services
`on the Internet will continue to expand.
`
`
`It elaborates:
`
`There have been several cases relevant to service
`provider liability for copyright infringement. Most
`have approached the issue from the standpoint of
`contributory and vicarious liability. Rather than
`embarking upon a wholesale clarification of these
`doctrines, the Committee decided to leave current law
`in its evolving state and, instead, to create a series
`of “safe harbors,” for certain common activities of
`
`
`
`- 8 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 9 of 30
`
`service providers. A service provider which qualifies
`for a safe harbor, receives the benefit of limited
`liability.
`
`Id. at 19 (footnote omitted).
`
`
`The Senate Judiciary Committee Report and the House
`Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2
`(1998), in almost identical language describe the DMCA’s purpose
`and structure (Senate Report at 40-41, House Report at 50):
` New section 512 contains limitations on service
`providers’ liability for five general categories of
`activity set forth in subsections (a) through (d) and
`subsection (f). As provided in subsection (k),
`section 512 is not intended to imply that a service
`provider is or is not liable as an infringer either
`for conduct that qualifies for a limitation of
`liability or for conduct that fails to so qualify.
`Rather, the limitations of liability apply if the
`provider is found to be liable under existing
`principles of law.
` The limitations in subsections (a) through (d)
`protect qualifying service providers from liability
`for all monetary relief for direct, vicarious and
`contributory infringement. Monetary relief is defined
`in subsection (j)(2) as encompassing damages, costs,
`attorneys’ fees, and any other form of monetary
`payment. These subsections also limit injunctive
`relief against qualifying service providers to the
`extent specified in subsection (i). To qualify for
`these protections, service providers must meet the
`conditions set forth in subsection (h), and service
`providers’ activities at issue must involve a function
`described in subsection (a), (b), (c), (d) or (f),
`respectively. The liability limitations apply to
`networks “operated by or for the service provider,”
`thereby protecting both service providers who offer a
`service and subcontractors who may operate parts of,
`or an entire, system or network for another service
`provider.
`
`
`
`
`
`- 9 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 10 of 30
`
`They discuss the “applicable knowledge standard”
`
`(Senate Report at 44-45, House Report at 53-54):
`
`
` Subsection (c)(1)—In general.—Subsection (c)(1)(A)
`sets forth the applicable knowledge standard. This
`standard is met either by actual knowledge of
`infringement or in the absence of such knowledge by
`awareness of facts or circumstances from which
`infringing activity is apparent. The term “activity”
`is intended to mean activity using the material on the
`system or network. The Committee intends such
`activity to refer to wrongful activity that is
`occurring at the site on the provider’s system or
`network at which the material resides, regardless of
`whether copyright infringement is technically deemed
`to occur at that site or at the location where the
`material is received. For example, the activity at an
`online site offering audio or video may be
`unauthorized
`public
`performance
`of
`a
`musical
`composition, a sound recording, or an audio-visual
`work, rather than (or in addition to) the creation of
`an unauthorized copy of any of these works.
` Subsection (c)(1)(A)(ii) can best be described as a
`“red flag” test. As stated in subsection (l), a
`service provider need not monitor its service or
`affirmatively
`seek
`facts
`indicating
`infringing
`activity (except to the extent consistent with a
`standard technical measure complying with subsection
`(h)), in order to claim this limitation on liability
`(or, indeed any other limitation provided by the
`legislation). However, if the service provider
`becomes aware of a “red flag” from which infringing
`activity is apparent, it will lose the limitation of
`liability if it takes no action. The “red flag” test
`has both a subjective and an objective element. In
`determining whether the service provider was aware of
`a “red flag,” the subjective awareness of the service
`provider of the facts or circumstances in question
`must be determined. However, in deciding whether
`those facts or circumstances constitute a “red flag”—
`in other words, whether infringing activity would have
`been apparent to a reasonable person operating under
`the same or similar circumstances—an objective
`standard should be used.
`
`
`
`- 10 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 11 of 30
`
` Subsection (c)(1)(A)(iii) provides that once a
`service provider obtains actual knowledge or awareness
`of facts or circumstances from which infringing
`material or activity on the service provider’s system
`or network is apparent, the service provider does not
`lose the limitation of liability set forth in
`subsection (c) if it acts expeditiously to remove or
`disable access to the infringing material. Because
`the factual circumstances and technical parameters may
`vary from case to case, it is not possible to identify
`a uniform time limit for expeditious action.
` Subsection (c)(1)(B) sets forth the circumstances
`under which a service provider would lose the
`protection of subsection (c) by virtue of its benefit
`from the control over infringing activity. In
`determining whether the financial benefit criterion is
`satisfied, courts should take a common-sense, fact-
`based approach, not a formalistic one. In general, a
`service provider conducting a legitimate business
`would not be considered to receive a “financial
`benefit directly attributable to the infringing
`activity” where the infringer makes the same kind of
`payment as non-infringing users of the provider’s
`service. Thus, receiving a one-time set-up fee and
`flat periodic payments for service from a person
`engaging in infringing activities would not constitute
`receiving a “financial benefit directly attributable
`to the infringing activity.” Nor is subparagraph (B)
`intended to cover fees based on the length of the
`message (per number of bytes, for example) or by
`connect time. It would however, include any such fees
`where the value of the service lies in providing
`access to infringing material.
`
`and at Senate Report 45, House Report 54:
`
` Section 512 does not require use of the notice and
`take-down procedure. A service provider wishing to
`benefit from the limitation on liability under
`subsection (c) must “take down” or disable access to
`infringing material residing on its system or network
`of which it has actual knowledge or that meets the
`“red flag” test, even if the copyright owner or its
`agent does not notify it of a claimed infringement.
`On the other hand, the service provider is free to
`refuse to “take down” the material or site, even after
`receiving a notification of claimed infringement from
`
`
`
`- 11 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 12 of 30
`
`the copyright owner; in such a situation, the service
`provider’s liability, if any, will be decided without
`reference to section 512(c). For their part,
`copyright
`owners
`are
`not
`obligated
`to
`give
`notification of claimed infringement in order to
`enforce their rights. However, neither actual
`knowledge nor awareness of a red flag may be imputed
`to a service provider based on information from a
`copyright owner or its agent that does not comply with
`the notification provisions of subsection (c)(3), and
`the limitation of liability set forth in subsection
`(c) may apply.
`
`The reports continue (Senate Report at 46-47, House
`
`Report at 55-56):
`the
`that
`requires
`(c)(3)(A)(iii)
` Subsection
`copyright owner or its authorized agent provide the
`service
`provider
`with
`information
`reasonably
`sufficient to permit the service provider to identify
`and locate the allegedly infringing material. An
`example of such sufficient information would be a copy
`or description of the allegedly infringing material
`and the URL address of the location (web page) which
`is alleged to contain the infringing material. The
`goal of this provision is to provide the service
`provider with adequate information to find and address
`the allegedly infringing material expeditiously.
`
`* * *
`
`
`
`
`
` Subsection (c)(3)(B) addresses the effect of
`notifications that do not substantially comply with
`the requirements of subsection (c)(3). Under this
`subsection, the court shall not consider such
`notifications as evidence of whether the service
`provider has actual knowledge, is aware of facts or
`circumstances, or has received a notification for
`purposes of subsection (c)(1)(A). However, a
`defective notice provided to the designated agent may
`be considered in evaluating the service provider’s
`knowledge or awareness of facts and circumstances, if
`(i) the complaining party has provided the requisite
`information concerning the identification of the
`
`
`
`- 12 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 13 of 30
`
`copyrighted work, identification of the allegedly
`infringing material, and information sufficient for
`the service provider to contact the complaining party,
`and (ii) the service provider does not promptly
`attempt to contact the person making the notification
`or take other reasonable steps to assist in the
`receipt of notification that substantially complies
`with paragraph (3)(A). If the service provider
`subsequently receives a substantially compliant
`notice, the provisions of paragraph (1)(C) would then
`apply upon receipt of the notice.
`
`When discussing section 512(d) of the DMCA which deals
`
`with information location tools, the Committee Reports contain
`an instructive explanation of the need for specificity (Senate
`Report at 48-49, House Report at 57-58):
` Like the information storage safe harbor in section
`512(c), a service provider would qualify for this safe
`harbor if, among other requirements, it “does not have
`actual knowledge that the material or activity is
`infringing” or, in the absence of such actual
`knowledge, it is “not aware of facts or circumstances
`from which infringing activity is apparent.” Under
`this standard, a service provider would have no
`obligation to seek out copyright infringement, but it
`would not qualify for the safe harbor if it had turned
`a blind eye to “red flags” of obvious infringement.
` For instance, the copyright owner could show that
`the provider was aware of facts from which infringing
`activity was apparent if the copyright owner could
`prove that the location was clearly, at the time the
`directory provider viewed it, a “pirate” site of the
`type described below, where sound recordings,
`software, movies or books were available for
`unauthorized downloading, public performance or public
`display. Absent such “red flags” or actual knowledge,
`a directory provider would not be similarly aware
`merely because it saw one or more well known
`photographs of a celebrity at a site devoted to that
`person. The provider could not be expected, during
`the course of its brief cataloguing visit, to
`determine whether the photograph was still protected
`by copyright or was in the public domain; if the
`
`
`
`- 13 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 14 of 30
`
`photograph was still protected by copyright, whether
`the use was licensed; and if the use was not licensed,
`whether it was permitted under the fair use doctrine.
` The important intended objective of this standard is
`to exclude sophisticated “pirate” directories—which
`refer Internet users to other selected Internet sites
`where pirate software, books, movies, and music can be
`downloaded or transmitted—from the safe harbor. Such
`pirate directories refer Internet users to sites that
`are obviously infringing because they typically use
`words such as “pirate,” “bootleg,” or slang terms in
`their uniform resource locator (URL) and header
`information to make their illegal purpose obvious to
`the pirate directories and other Internet users.
`Because the infringing nature of such sites would be
`apparent from even a brief and casual viewing, safe
`harbor status for a provider that views such a site
`and then establishes a link to it would not be
`appropriate. Pirate directories do not follow the
`routine business practices of legitimate service
`providers preparing directories, and thus evidence
`that they have viewed the infringing site may be all
`that is available for copyright owners to rebut their
`claim to a safe harbor.
` In this way, the “red flag” test in section 512(d)
`strikes the right balance. The common-sense result of
`this “red flag” test is that online editors and
`catalogers
`would
`not
`be
`required
`to
`make
`discriminating judgments about potential copyright
`infringement. If, however, an Internet site is
`obviously pirate, then seeing it may be all that is
`needed for the service provider to encounter a “red
`flag.” A provider proceeding in the face of such a
`red flag must do so without the benefit of a safe
`harbor.
` Information location tools are essential to the
`operation of the Internet; without them, users would
`not be able to find the information they need.
`Directories are particularly helpful in conducting
`effective searches by filtering out irrelevant and
`offensive material. The Yahoo! Directory, for
`example, currently categorizes over 800,000 online
`locations and serves as a “card catalogue” to the
`World Wide Web, which over 35,000,000 different users
`visit each month. Directories such as Yahoo!’s
`usually are created by people visiting sites to
`categorize them. It is precisely the human judgment
`
`
`
`- 14 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 15 of 30
`
`these
`by
`exercised
`discretion
`editorial
`and
`cataloguers which makes directories valuable.
` This provision is intended to promote the
`development of information location tools generally,
`and Internet directories such as Yahoo!’s in
`particular, by establishing a safe-harbor from
`copyright infringement liability for information
`location tool providers if they comply with the notice
`and takedown procedures and other requirements of
`subsection (d). The knowledge or awareness standard
`should not be applied in a manner which would create a
`disincentive to the development of directories which
`involve human intervention. Absent actual knowledge,
`awareness of infringement as provided in subsection
`(d) should typically be imputed to a directory
`provider only with respect to pirate sites or in
`similarly obvious and conspicuous circumstances, and
`not simply because the provider viewed an infringing
`site during the course of assembling the directory.
`
`The tenor of the foregoing provisions is that the
`
`phrases “actual knowledge that the material or an activity” is
`infringing, and “facts or circumstances” indicating infringing
`activity, describe knowledge of specific and identifiable
`infringements of particular individual items. Mere knowledge of
`prevalence of such activity in general is not enough. That is
`consistent with an area of the law devoted to protection of
`distinctive individual works, not of libraries. To let
`knowledge of a generalized practice of infringement in the
`industry, or of a proclivity of users to post infringing
`materials, impose responsibility on service providers to
`discover which of their users’ postings infringe a copyright
`would contravene the structure and operation of the DMCA. As
`
`
`
`- 15 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 16 of 30
`
`stated in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113
`(9th Cir. 2007):
`The DMCA notification procedures place the burden of
`policing
`copyright
`infringement—identifying
`the
`potentially
`infringing
`material
`and
`adequately
`documenting infringement—squarely on the owners of the
`copyright. We decline to shift a substantial burden
`from the copyright owner to the provider . . . .
`
`That makes sense, as the infringing works in suit may
`
`be a small fraction of millions of works posted by others on the
`service’s platform, whose provider cannot by inspection
`determine whether the use has been licensed by the owner, or
`whether its posting is a “fair use” of the material, or even
`whether its copyright owner or licensee objects to its posting.
`The DMCA is explicit: it shall not be construed to condition
`“safe harbor” protection on “a service provider monitoring its
`service or affirmatively seeking facts indicating infringing
`activity . . . .” Id. § 512(m)(1); see Senate Report at 44,
`House Report at 53.
`
`Indeed, the present case shows that the DMCA
`notification regime works efficiently: when Viacom over a
`period of months accumulated some 100,000 videos and then sent
`one mass take-down notice on February 2, 2007, by the next
`business day YouTube had removed virtually all of them.
`
`
`
`
`
`
`- 16 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 17 of 30
`
`2.
`Case Law
`
`
`
`In CCBill LLC, supra, the defendants provided web
`hosting and other services to various websites. The plaintiff
`argued that defendants had received notice of apparent
`infringement from circumstances that raised “red flags”:
`websites were named “illegal.net” and “stolencelebritypics.com,”
`and others involved “password-hacking.” 488 F.3d at 1114
`(internal quotation marks omitted). As to each ground, the
`Ninth Circuit disagreed, stating “We do not place the burden of
`determining whether photographs are actually illegal on a
`service provider”; and “There is simply no way for a service
`provider to conclude that the passwords enabled infringement
`without trying the passwords, and verifying that they enabled
`illegal access to copyrighted material. We impose no such
`investigative duties on service providers.” Id.
`
`The District Court in UMG Recordings, Inc. v. Veoh
`Networks, Inc., 665 F. Supp. 2d 1099, 1108 (C.D. Cal. 2009),
`concluded that “CCBill teaches that if investigation of ‘facts
`and circumstances’ is required to identify material as
`infringing, then those facts and circumstances are not ‘red
`flags.’” That observation captures the reason why awareness of
`pervasive copyright-infringing, however flagrant and blatant,
`
`
`
`- 17 -
`
`

`
`Case 1:07-cv-02103-LLS Document 364 Filed 06/23/10 Page 18 of 30
`
`does not impose liability on the service provider. It furnishes
`at most a statistical estimate of the chance any particular
`posting is infringing — and that is not a “red flag” marking any
`particular work.
`
`In Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d
`1090, 1108 (W.D. Wash. 2004) the court stated that “The issue is
`not whether Amazon had a general awareness that a particular
`type of item may be easily infringed. The issue is whether
`Amazon actually knew that specific zShops vendors were selling
`items that infringed Corbis copyrights.” It required a “showing
`that those sites contained the type of blatant infringing
`activity that would have sent up a red flag for Amazon.” Id. at
`1109. Other evidence of “red flags” was unavailing, for it
`“provides no evidence from which to infer that Amazon was aware
`of, but chose to ignore, red flags of blatant copyright
`infringement on specific zShops sites.” Id.
`
`A similar recent decision of the Second Circuit
`involved analogous claims of trademark infringement (and
`therefore did not involve the DMCA) by sales of counterfeit
`Tiffany

This document is available on Docket Alarm but you must sign up to view it.


Or .

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account account view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.

We are unable to display this document.

Go back to the docket to see more.