Attorneys Joust Over Copyright Law’s Legacy

      SAN FRANCISCO (CN) — Whether courts have “gotten it right” when it comes to the Digital Millennium Copyright Act’s notice and takedown provisions divided legal minds Thursday at a roundtable hosted by the U.S. Copyright Office.
     Section 512 of the 1998 law was designed to incentivize cooperation between copyright owners and online service providers, and protect providers from legal liability.
     The Copyright Office this year solicited comments on whether Section 512, the safe harbor provisions in the DMCA, are working as intended: preventing rampant copyright abuse without overburdening Internet platforms.
     At Thursday’s roundtable at the U.S. Court of Appeals for the Ninth Circuit, there wasn’t much consensus on the topic, particularly during a session on the law’s knowledge standards. Service providers seeking protection under the safe harbor provisions are required to remove or disable access to infringing material, either when they have “actual knowledge” of the infringement or awareness of the activity. The latter has become commonly known as “red flag” knowledge.
     “We think courts have generally gotten it wrong on this point,” said Ben Sheffner, vice president of legal affairs for the Motion Picture Association of America. He cited Viacom v. YouTube, a long-running copyright case from 2008, in which the Second Circuit held that general knowledge of infringing activity is not enough to eject a service provider such as YouTube from safe harbor protections.
     Sheffner said courts have turned the DMCA into a notice-and-takedown provision.
     “What they’ve done is collapse the actual and red-flag knowledge standard and said, ‘None of that matters. No matter how much general knowledge you had, even if you welcome infringing activity, you’re still protected by the safe harbor as long as you respond to specific notices of infringement.'”
     While safe harbor does not require that sites such as YouTube continuously seek out and monitor copyright scofflaws, Sheffner said, they have a duty to investigate.
     “Yes, in general you don’t have obligation to monitor, but once you are put on notice you have to do what is appropriate under the statute.”
     Ellen Schrantz with the Internet Association had a totally different take.
     “I would say yes, the courts have gotten it right,” she said. “The courts understood what Congress understood in 1998, and that’s for the statute to effectively function well there has to be that specific knowledge.
     “When it comes to protecting the statute and what’s working, if you were to open it up and weaken it and skew things by changing the red flag or actual knowledge standards, you’re in fact taking a step backward, not forward.”
     Devlin Hartline with the Center for the Protection of Intellectual Property said recent court interpretations of red-flag knowledge have incentivized service providers not to act on infringement.
     “The main problem as I see it is that the red-flag knowledge standard is not being interpreted correctly by the courts,” he said.
     A better read, Hartline said, would be that actual knowledge should hinge on specifics, and red flag knowledge on generalities.
     “In general there’s not duty to monitor, but that lack of duty goes away once you gain red-flag knowledge,” he said. “If a service provider knows that something is obviously infringing then they have a duty to investigate to find out what it is. Congress didn’t want service providers to be able turn a blind eye to obvious infringement. It’s about common sense.”
     The roundtable turned to the statute’s policies on repeat infringers, which courts have defined as those who “repeatedly and blatantly infringe copyright.” One safe harbor condition is a service provider’s obligation to terminate repeat offenders.
     Attorney Brian Willen with Wilson Sonsini Goodrich said the key point courts have gotten right is the policy’s flexibility.
     “You definitely have blatant bad users who are definitely trying to rip content off. At the same time you have a number of users that are not lawyers, not necessarily sophisticated, who generally don’t know what’s allowed and what’s not,” Willen said.
     “And so when you have takedown notices that come in for those users, you have to make sure the people you are terminating are bad ones, not the ones who are innocently trying to create, say, a home video and use an entire song thinking, ‘That’s something I can do.'”
     Passions were inflamed when the discussion turned to how service providers deal with repeat infringers. Internet access can be taken away in some cases, a punishment generally viewed as excessively harsh, especially when the statute does not account for instances in which someone could be accused of repeated infringement, but not necessarily guilty.
     “We would sure like some clarity on what counts as repeat infringers. We want to avail ourselves of the safe harbor, but administering a repeat infringer policy in these areas can be tricky for us,” said Peter Midgley of Brigham Young University, who compared kicking a student off a university’s network to expulsion from the school.
     Some called for more judicial intervention.
     “Mr. Midgley brings up an interesting point on what the effect on a student is. We are not in 1998 anymore,” said Cathy Gellis with Digital Age Defense.
     “Any repeat infringer policy, particularly based on an allegation alone, has a huge affect in this context. ‘J’accuse, I think you infringe.’ Now all of a sudden you’re not on YouTube. You’re not on your ISP, you can’t tweet,” she said.
     Attorney Andrew Bridges with Fenwick & West said adjudication is the only fair way to handle accusations that can lead to being kicked off the Internet.
     “Who decides who’s an infringer? There’s only one competent authority to decide who’s an infringer and that’s a court.
     “Every motion picture studio and record label has been accused of copyright infringement at least three times. And I bet they would not like to have their Internet service terminated.
     “If accusation makes an infringer, than most of the major copyright holders are infringers by that standard. Being cut from a university network as a student is pretty bad; I get it. Being cut off from being able to apply for a job, to pay your bills, to pay taxes in California, where you have to file electronically, is a big deal. Adjudication is the only way to go.”

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