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Blog And Forum Operators - DMCA "Safe Harbor" Not Bullet Proof A U.S. 2nd Circuit Court of Appeals ruling on April 5, 2012 in favor of Viacom in its copyright infringement litigation against YouTube should be a fair warning to online service providers that provide blogs or forums on their websites - the DMCA "safe harbor" is not bullet proof. The Digital Millennium Copyright Act (DMCA) "safe harbor" protects online service providers from copyright infringement claims based on infringing posts on blogs and forums by users. Prior to the Second Circuit's ruling, the DMCA "safe harbor" was viewed as virtually bullet proof. Not so, anymore. The DMCA "Safe Harbor" Prior to the DMCA's enactment in 1998, online service providers were liable for copyright infringement if visitors to their websites posted infringing materials, such as on a blog or forum. Service providers were liable for copyright infringement even if they were not aware of the infringing postings due to the strict liability principles of the U.S. Copyright Act. DMCA provides a so-called "safe harbor" from copyright infringement liability, provided that certain requirements are satisfied, including posting a notice on the website, registering with the Copyright Office, and taking down allegedly infringing material upon receipt of notice from the copyright owner. The District Court Ruling Viacom sued YouTube alleging that YouTube infringed their copyrights by knowingly displaying Viacom's content on the YouTube website. The content was posted by YouTube's users, not by YouTube itself. YouTube defended based on its reliance on the DMCA "safe harbor". The District Court ruled in favor of YouTube in a motion for summary judgment, with the effect that YouTube was protected from infringement liability by the DMCA. The District Court found that since YouTube had insufficient knowledge of the infringing materials posted on its website, the DMCA "safe harbor" protected YouTube from liability. The 2nd Circuit Ruling The 2nd Circuit found that the District Court properly did rule correctly on the issue of the requirement of knowledge or awareness of infringing activity, meaning that if YouTube did in fact have actual knowledge or awareness of infringing activity and then did not remove the infringing materials, YouTube would be disqualified from the protections of the "safe harbor". However, the 2nd Circuit pointed out that whether or not YouTube actually had the required knowledge or awareness was a question of fact that should be determined by a jury, and therefore summary judgment was premature. The 2nd Circuit noted that there was evidence that YouTube may have had actual knowledge or awareness of infringing activity. Internal YouTube emails indicated that videos of Bud Light commercials and CNN video clips were believed by YouTube management to be "blatantly illegal", yet they were left on the YouTube site for a while in order to gain publicity for YouTube. Based on this and similar evidence of YouTube's actual knowledge or awareness of infringing activity, the 2nd Circuit held that a jury could find that YouTube was disqualified from the protections of the DMCA "safe harbor". As a result, the YouTube case was remanded back to the District Court to determine if there was sufficient evidence for a jury "to conclude that YouTube had the right and ability to control the infringing activity and received a financial benefit directly attributable to that activity." Conclusion This ruling by the 2nd Circuit sends a strong message to online service providers that provide blogs or forums on their websites that the DMCA "safe harbor" is not bullet proof. Now, actual knowledge of infringing activity may disqualify blog and forum operators from the protections of the DMCA "safe harbor". The important take-away from this decision is that it is critical for blog and forum operators to remove any infringing content immediately after learning of its posting on their websites. And immediately means just that - immediately, not a couple of weeks later. This article is provided for educational and informative purposes only. This information does not constitute legal advice, and should not be construed as such.
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