Tag: red flag knowledge

Categories
Copyright

Scalia Law Students and CPIP Scholars Make an Impact in Copyright Office Section 512 Study

the word "copyright" written on a typewriterThe U.S. Copyright Office released its long-awaited report on Section 512 of Title 17 late last week. The Report is the culmination of more than four years of study by the Office of the safe harbor provisions for online service provider (OSP) liability in the Digital Millennium Copyright Act of 1998 (DMCA). Fortuitously, the study period coincided with the launch of Scalia Law’s Arts and Entertainment Advocacy Clinic. Clinic students were able to participate in all phases of the study, including filing comments on behalf of artists and CPIP scholars, testifying at roundtable proceedings on both coasts, and conducting a study of how OSPs respond to takedown notices filed on behalf of different types of artists. The Office cites the filings and comments of Scalia Law students numerous times and ultimately adopts the legal interpretation of the law advocated by the CPIP scholars.

The Office began the study in December 2015 by publishing a notice of inquiry in the Federal Register seeking public input on the impact and effectiveness of the safe harbor provisions in Section 512. Citing testimony by CPIP’s Sean O’Connor to the House Judiciary Committee that the notice-and-takedown system is unsustainable given the millions of takedown notices sent each month, the Office launched a multi-pronged inquiry to determine whether Section 512 was operating as intended by Congress.

Scalia Law’s Arts and Entertainment Advocacy Clinic drafted two sets of comments in response to this initial inquiry. Terrica Carrington and Rebecca Cusey submitted comments to the Office on behalf of middle class artists and advocates, including Blake Morgan, Yunghi Kim, Ellen Seidler, David Newhoff, and William Buckley, arguing that the notice-and-takedown regime under Section 512 is “ineffective, inefficient, and unfairly burdensome on artists.” The students pointed out that middle class artists encounter intimidation and personal danger when reporting infringements to OSPs. Artists filing takedown notices must include personal information, such as their name, address, and telephone number, which is provided to the alleged infringer or otherwise made public. Artists often experience harassment and retaliation for sending notices. The artists, by contrast, obtain no information about the identity of the alleged infringer from the OSP. The Office’s Report cited these problems as a detriment for middle class artists and “a major motivator” of its study.

A second response to the notice of inquiry was filed by a group of CPIP scholars, including Sandra Aistars, Matthew Barblan, Devlin Hartline, Kevin Madigan, Adam Mossoff, Sean O’Connor, Eric Priest, and Mark Schultz. These comments focused solely on the issue of how judicial interpretations of the “actual” and “red flag” knowledge standards affect Section 512. The scholars urged that the courts have interpreted the red flag knowledge standard incorrectly, thus disrupting the incentives that Congress intended for copyright owners and OSPs to detect and deal with online infringement. Several courts have interpreted red flag knowledge to require specific knowledge of particular infringing activity; however, the scholars argued that Congress intended for obvious indicia of general infringing activity to suffice.

The Office closely analyzed and ultimately adopted the scholars’ red flag knowledge argument in the Report:

Public comments submitted by a group of copyright law scholars in the Study make a point closely related to the rightsholders’ argument above, focusing on the different language Congress chose for actual and red flag knowledge. They note that the statute’s standard for actual knowledge is met when the OSP has “knowledge that the material or an activity using the material on the system or network is infringing” or “knowledge that the material or activity is infringing,” while the red flag knowledge standard is met when the OSP is “aware of facts or circumstances from which infringing activity is apparent.” This difference, the copyright law scholars argue, is crucial to understanding the two standards: while the statute uses a definite article—“the”—to refer to material or activity that would provide actual knowledge, it drops “the” to speak more generally about facts or circumstances that would create red flag knowledge. “In Congress’s view,” the comment concludes, “the critical distinction between the two knowledge standards was this: Actual knowledge turns on specifics, while red flag knowledge turns on generalities.”

 

The Office went on to state that “a standard that requires an OSP to have knowledge of a specific infringement in order to be charged with red flag knowledge has created outcomes that Congress likely did not anticipate.” And since “courts have set too high a bar for red flag knowledge,” the Office concluded, Congress’ intent for OSPs to act upon information of infringement has been subverted. This echoed the scholars’ conclusion that the courts have disrupted the balance of responsibilities that Congress sought to create with Section 512 by narrowly interpreting the red flag knowledge standard.

Scalia Law students and CPIP scholars likewise participated in roundtable hearings on each coast to provide further input for the Copyright Office’s study of Section 512. The first roundtable was held on May 2-3, 2016, in New York, New York, at the Thurgood Marshall United States Courthouse, where the Second Circuit and Southern District of New York hear cases. The roundtable was attended by CPIP’s Sandra Aistars and Matthew Barblan. They discussed the notice-and-takedown process, the scope and impact of the safe harbors, and the future of Section 512. The second roundtable was held in San Francisco, California, at the James R. Browning Courthouse, where the Ninth Circuit hears cases. Scalia Law student Rebecca Cusey joined CPIP’s Sean O’Connor and Devlin Hartline to discuss the notice-and-takedown process, applicable legal standards, the scope and impact of the safe harbors, voluntary measures and industry agreements, and the future of Section 512. Several of the comments made by the CPIP scholars at the roundtables ended up in the Office’s Report.

In November 2016, the Office published another notice of inquiry in the Federal Register seeking additional comments on the impact and effectiveness of Section 512. The notice itself included citations to the comments submitted by Scalia Law students and the comments of the CPIP scholars. Under the guidance of Prof. Aistars, the students from Scalia Law’s Arts and Entertainment Advocacy Clinic again filed comments with the Office. Clinic students Rebecca Cusey, Stephanie Semler, Patricia Udhnani, Rebecca Eubank, Tyler Del Rosario, Mandi Hart, and Alexander Summerton all contributed to the comments, which discussed their work in helping individuals and small businesses enforce their copyright claims by submitting takedown notices pursuant to Section 512. The students reported on the practical barriers to the effective use of the notice-and-takedown process at particular OSPs. Two problems identified by the students were cited by the Copyright Office as examples of how OSPs make it unnecessarily difficult to submit a takedown notice. Accordingly, the Office called on Congress to update the relevant provisions of Section 512.

Two years after the additional written comments were submitted, the Office announced a third and final roundtable to be held on April 8, 2019, at the Library of Congress in Washington, D.C. The purpose of this meeting was to discuss any relevant domestic or international developments that had occurred during the two prior years. CPIP’s Devlin Hartline attended this third roundtable to discuss recent case law related to Section 512, thus ensuring that CPIP scholars were represented at all three of the Office’s roundtables.

CPIP congratulates and thanks the students of Scalia Law’s Arts and Entertainment Advocacy Clinic for their skillful advocacy on behalf of artists who otherwise would not be heard in these debates.

Categories
Copyright

Twenty Years Later, DMCA More Broken Than Ever

a lightbulb shatteringWith Section 512 of the DMCA, Congress sought to “preserve[] strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”[1] Given the symbiotic relationship between copyright owners and service providers, Congress meant to establish an online ecosystem where both would take on the benefits and burdens of policing copyright infringement. This shared-responsibility approach was codified in the Section 512 safe harbors. But rather than service providers and copyright owners working together to prevent online piracy, Section 512 has turned into a notice-and-takedown regime where copyright owners do most of the work. This is not what Congress intended, and the main culprit is how the courts have misinterpreted Section 512’s red flag knowledge standards.

Several provisions in Section 512 demonstrate that Congress expected service providers to also play a role in preventing copyright infringement by doing some of the work in finding and removing infringing material. In order to benefit from the safe harbors, service providers must designate an agent to receive takedown notices, respond expeditiously to takedown notices, act upon representative lists, implement reasonable repeat infringer policies, and accommodate standard technical measures. But it’s also clear that service providers have the duty to remove infringing content even without input from copyright owners. As the Senate Report notes, “Section 512 does not require use of the notice and take-down procedure.”[2] And the knowledge provisions in Section 512 reflect this. Absent a takedown notice, service providers must, “upon obtaining . . . knowledge or awareness” of infringing material or activity, “act[] expeditiously to remove . . . the material” in order to maintain safe harbor protection.[3]

Under Section 512, there are two kinds of knowledge that trigger the removal obligation without input from the copyright owner—actual and red flag. For sites hosting user-uploaded content, actual knowledge is “knowledge that the material or an activity using the material on the system or network is infringing”[4] and red flag knowledge is “aware[ness] of facts or circumstances from which infringing activity is apparent.”[5] Thus, actual knowledge requires knowledge that specific material (“the material”) or activity using that specific material (“activity using the material”) is actually infringing (“is infringing”), while red flag knowledge requires only general awareness (“aware[ness] of facts or circumstances”) that activity appears to be infringing (“is apparent”). There are similar knowledge provisions for search engines.[6]

Importantly, actual knowledge refers to “the material,” and red flag knowledge does not. It instead refers to “infringing activity”—and it’s not the infringing activity, but infringing activity generally.[7] However, with both actual and red flag knowledge, the service provider is obligated to remove “the material.”[8] With actual knowledge, the service provider doesn’t have to go looking for “the material” since it already has actual, subjective knowledge of it. But what about with red flag knowledge where the service provider only knows of “infringing activity” generally? How does it know “the material” to take down? The answer is simple: Once the service provider is subjectively aware of facts or circumstances from which infringing activity would be objectively apparent[9]—that is, once it has red flag knowledge—it has to investigate and find “the material” to remove.[10]

The examples given in the legislative history, which relate to search engines, show that red flag knowledge puts the burden on the service provider. As the Senate Report notes, merely viewing “one or more well known photographs of a celebrity at a site devoted to that person” would not hoist the red flag since the images might be licensed or fair use.[11] However, sites that are “obviously infringing because they . . . use words such as ‘pirate,’ ‘bootleg,’ or slang terms . . . to make their illegal purpose obvious . . . from even a brief and casual viewing” do raise the red flag.[12] And a search engine “that views such a site and then establishes a link to it . . . must do so without the benefit of a safe harbor.”[13] Thus, Congress didn’t want search engines worrying about questionable infringements on a small scale, but it also didn’t want search engines to catalog sites that are clearly dedicated to piracy. And, most importantly, red flag knowledge kicks in once a service provider looks at something that is “obviously pirate”—even if it’s an entire website.[14]

So how has Congress’s commonsensical plan worked out? Not very well. As of today, Google indexes nearly 1.5 million results from the infamous pirate site, The Pirate Bay.[15] Like the examples in the legislative history, The Pirate Bay has the word “pirate” in its title, and a brief viewing of the site reveals its obvious, infringing purpose. And it’s not like Google hasn’t been told that The Pirate Bay is dedicated to infringement—nor that it needs to be told. According to data from the Google Transparency Report,[16] the search engine has received requests to remove over 4 million URLs from thepiratebay.org domain alone. There are many other related domains, such as thepiratebay.se, that have received millions of requests as well. In fact, Google tells us that it has received requests to remove over 4 billion URLs from its search engine due to copyright infringement, with many domains receiving more than 10 million requests each.

So how is it that Google can index The Pirate Bay and not be worried about losing its safe harbor? The answer is that the courts have construed Section 512 in a way that contradicts the statutory text and Congress’s intent. They’ve all but read red flag knowledge out of Section 512 and placed the burden of policing infringement disproportionately on the copyright owner. And by narrowing the applicability of red flag knowledge, the courts have perversely incentivized service providers to do as little as possible to prevent infringements. Instead of looking into infringing activity of which they are subjectively aware, they are better off doing nothing lest they gain actual, specific knowledge that would remove their safe harbor protection.

A brief traverse through the case law, especially in the Second and Ninth Circuits, shows how the red flag knowledge train has been derailed. In Perfect 10 v. CCBill, the Ninth Circuit held that domains such as illegal.net and stolencelebritypics.com—the very sort of indicia mentioned in the legislative history—were not enough to raise the red flag.[17] According to the court, “describing photographs as ‘illegal’ or ‘stolen’ may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen.”[18] While that’s certainly possible, it’s not likely. And it defies common sense. The Ninth Circuit concluded: “We do not place the burden of determining whether photographs are actually illegal on a service provider.”[19] But this misses the point, and it conflates red flag knowledge with actual knowledge.

The Second Circuit in Viacom v. YouTube held that the “difference between actual and red flag knowledge is . . . not between specific and generalized knowledge, but instead between a subjective and an objective standard.”[20] The court arrived there by focusing on the removal obligation, reasoning that “expeditious removal is possible only if the service provider knows with particularity which items to remove.”[21] And it rejected an “amorphous obligation” to investigate “in response to a generalized awareness of infringement.”[22] By limiting red flag knowledge to specific instances of infringement, the Second Circuit severely curtailed the obligations of service providers to police infringements on their systems. The entire point of red flag knowledge is to place a burden on the service provider to investigate the infringing activity further so that the specific material can be removed.[23]

The Ninth Circuit followed suit in UMG Recordings v. Shelter Capital, holding that red flag knowledge requires specificity.[24] The court reasoned that requiring “specific knowledge of particular infringing activity makes good sense” because it will “foster cooperation” between copyright owners and service providers “in dealing with infringement” online.[25] This “cooperation,” according to the Ninth Circuit, would come from takedown notices sent by copyright owners, who “know precisely what materials they own, and are thus better able to efficiently identify” infringing materials than service providers, “who cannot readily ascertain what material is copyrighted and what is not.”[26] Of course, this is not the shared-responsibility approach envisioned by Congress, and it conflates the red flag knowledge standards with the obligation to respond to takedown notices—separate provisions in Section 512.

Perhaps the most significant gutting of red flag knowledge can be found in the Second Circuit’s opinion in Capitol Records v. Vimeo.[27] The district court below had held that it was a question for the jury whether full-length music videos of current, famous songs that had been viewed by the service provider amounted to red flag knowledge.[28] But the Second Circuit disagreed that there was any jury question: “[T]he mere fact that a video contains all or substantially all of a piece of recognizable, or even famous, copyrighted music and was to some extent viewed . . . would be insufficient (without more) to sustain the copyright owner’s burden of showing red flag knowledge.”[29] That this gloss on red flag knowledge “reduces it to a very small category” was of “no significance,” the Second Circuit reasoned, since “the purpose of § 512(c) was to give service providers immunity, in exchange for augmenting the arsenal of copyright owners by creating the notice-and-takedown mechanism.”[30]

The Second Circuit thus held as a matter of law that there was no need for the factfinder to determine whether the material was so obviously infringing that it would raise the red flag. How is this a question of law and not fact? The court never explains. More importantly, this flies in the face of what Congress provided for with red flag knowledge, and it demotes Section 512 to being merely a notice-and-takedown regime where copyright owners are burdened with identifying infringements on URL-by-URL basis. Giving service providers a free pass when confronted with a red flag turns the Section 512 framework on its head. And it enables service providers to game the system and build business models on widespread, infringing content—even if they welcome it—so long as they respond to takedown notices. The end result is that an overwhelming amount of obvious infringements goes unchecked, and there’s essentially no cooperation between service providers and copyright owners as Congress intended.

[1] S. Rep. No. 105-190, at 40 (emphasis added); see also H.R. Rep. No. 105-551(II), at 49.

[2] Id. at 45; see also H.R. Rep. No. 105-551(II), at 54.

[3] 17 U.S.C. § 512(c)(1)(A)(iii); see also 17 U.S.C. § 512(d)(1)(C).

[4] Id. at § 512(c)(1)(A)(i) (emphasis added).

[5] Id. at § 512(c)(1)(A)(ii) (emphasis added).

[6] See id. at §§ 512(d)(1)(A)-(B).

[7] See 4-12B Nimmer on Copyright § 12B.04[A][1][b][ii] (“By contrast, to show that a ‘red flag’ disqualifies defendant from the safe harbor, the copyright owner must simply show that ‘infringing activity’ is apparent—pointedly, not ‘the infringing activity’ alleged in the complaint.” (emphasis in original)).

[8] 17 U.S.C. § 512(c)(1)(A)(iii)

[9] S. Rep. No. 105-190, at 44 (“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.”); see also H.R. Rep. No. 105-551(II), at 53.

[10] Id at 48 (“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.”); see also H.R. Rep. No. 105-551(II), at 57.

[11] Id.; see also H.R. Rep. No. 105-551(II), at 57-58.

[12] Id.; see also H.R. Rep. No. 105-551(II), at 58.

[13] Id. at 48-49; see also H.R. Rep. No. 105-551(II), at 58.

[14] Id. at 49; see also H.R. Rep. No. 105-551(II), at 58.

[15] See The Pirate Bay, available at https://www.thepiratebay.org/.

[16] See Google Transparency Report, available at https://transparencyreport.google.com/.

[17] See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007).

[18] Id. at 1114.

[19] Id.

[20] Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012).

[21] Id. at 30.

[22] Id. at 30-31.

[23] See, e.g., H.R. Rep. No. 105-551(I), at 26 (“Once one becomes aware of such information, however, one may have an obligation to check further.”).

[24] UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).

[25] Id. at 1021-22.

[26] Id. at 1022.

[27] Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016).

[28] Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 537, 549 (S.D.N.Y. 2013) (“[B]ased on the type of music the videos used here—songs by well-known artists, whose names were prominently displayed—and the placement of the songs within the video (played in virtually unaltered form for the entirety of the video), a jury could find that Defendants had ‘red flag’ knowledge of the infringing nature of the videos.”).

[29] Capitol Records, 826 F.3d at 94 (emphasis in original).

[30] Id. at 97.

I presented this at the Fordham IP Conference on April 25, 2019. My oral presentation is here, and the accompanying slides are here.

Categories
Copyright Infringement Internet Uncategorized

Second Circuit Deepens Red Flag Knowledge Circuit Split in Vimeo

a gavel lying on a table in front of booksThe Second Circuit’s recent opinion in Capitol Records v. Vimeo is, to put it mildly, pretty bad. From its convoluted reasoning that copyrights under state law for pre-1972 sound recordings are limited by the DMCA safe harbors, despite the explicit statement in Section 301(c) that “rights or remedies” under state law “shall not be annulled or limited” by the Copyright Act, to its gutting of red flag knowledge by limiting it to the nearly-impossible situation where a service provider actually knows that a specific use of an entire copyrighted work is neither fair nor licensed yet somehow doesn’t also surmise that it’s infringing, it’s hard to see how either result is compelled by the statutes, much less how it was intended by Congress. On the latter point, the Second Circuit in essence has written red flag knowledge out of the statute, reducing the DMCA to a mere notice-and-takedown regime. The reality is that Congress expected red flag knowledge to do far more work, incentivizing service providers to take action in the face of a red flag—even without a notice.

If there’s any good to come from Vimeo, it might only be that the Second Circuit has now deepened the circuit split with the Ninth Circuit in Columbia Pictures v. Fung on two issues related to red flag knowledge. Under the statute, red flag knowledge exists when a service provider is “aware of facts or circumstances from which infringing activity is apparent.” The two circuits are already split on the issue of whether red flag knowledge must pertain to the particular works that are being sued over in the suit. And now with Vimeo, the circuits are split on the issue of whether a service provider can gain red flag knowledge just by looking at an infringing work. The deeper the circuit split, the greater the chance an appeal will make it to the Supreme Court, which would hopefully clean up the current red flag knowledge mess.

In Fung, the defendant, Gary Fung, operated several piracy havens, including isoHunt, TorrentBox, Podtropolis, and eDonkey. The district court found Fung liable for inducement under MGM v. Grokster and denied him safe harbor protection under the DMCA. The district court’s decision came in 2009, two years before the Ninth Circuit first held in UMG v. Shelter Capital that red flag knowledge requires “specific knowledge of particular infringing activity.” It also came two-and-a-half years before the Second Circuit held in Viacom v. YouTube that red flag knowledge is only relevant if it pertains to the works-in-suit. Regardless, since the vast majority of content available on Fung’s sites was copyrighted, including specific content that he himself had downloaded, the district court held that Fung hadn’t even raised a triable issue of fact as to whether he had red flag knowledge. The fact that none of the works he had been sued over were the same as the ones he had been found to have red flag knowledge of was irrelevant.

On appeal, the Ninth Circuit affirmed the district court’s holding that Fung had red flag knowledge as a matter of law. The opinion came out just one week after the same panel of judges issued a superseding opinion in UMG v. Shelter Capital reiterating that red flag knowledge requires “specific knowledge of particular infringing activity.” Importantly, in applying that standard to Fung, the Ninth Circuit did not say that the specific knowledge had to be of the particular works-in-suit. For whatever reason, Fung had failed to argue otherwise. Google even filed an amicus brief supporting the plaintiffs but nonetheless arguing that “the DMCA’s knowledge standards are specific and focus on the particular material that the plaintiff is suing about.” Apparently unaware that this actually helped his case, Fung filed a supplemental brief calling Google’s argument “fallacious.”

In the Ninth Circuit’s opinion, even though red flag knowledge had to relate to particular infringing activity, that activity did not have to involve the particular works-in-suit. Moreover, the Ninth Circuit held that the “material in question was sufficiently current and well-known that it would have been objectively obvious to a reasonable person” that it was “both copyrighted and not licensed to random members of the public.” Since Fung failed to expeditiously remove the particular material of which he had red flag knowledge, he lost his safe harbor protection across the board. Thus, the Ninth Circuit in Fung held that: (1) red flag knowledge that strips a service provider of its entire safe harbor protection does not have to pertain to the particular works-in-suit, and (2) material can be so “current and well-known” that its infringing nature would be “objectively obvious to a reasonable person.”

The Second Circuit in Vimeo parted ways with the Ninth Circuit on these two holdings. Since the “evidence was not shown to relate to any of the videos at issue in this suit,” the Second Circuit held that it was “insufficient to justify a finding of red flag knowledge . . . as to those specific videos.” The Second Circuit thus applied the red flag knowledge standard on a work-by-work basis, in direct contrast to the Ninth Circuit in Fung. Also, the Second Circuit held that “the mere fact that a video contains all or substantially all of a piece of recognizable, or even famous, copyrighted music” and was “viewed in its entirety” by an “employee of a service provider” was not enough “to sustain the copyright owner’s burden of showing red flag knowledge.” The court added that even “an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed.” So while the Ninth Circuit said it would have been objectively obvious to Fung that particular works were infringing, the Second Circuit in Vimeo set the bar far higher.

Curiously, the Second Circuit in Vimeo didn’t even mention Fung, despite the fact that it was deepening the circuit split with the Ninth Circuit. One wonders whether the omission was intentional. Either way, the circuit split has only gotten deeper. While in the Ninth Circuit an infringement can be so obvious that a court can find that a service provider had red flag knowledge without even sending it to a jury, the Second Circuit says that courts can’t let a jury decide whether a service provider had red flag knowledge even with the most obvious of infringements. And while in the Ninth Circuit a service provider loses its entire safe harbor for failing to remove an obvious infringement that it hasn’t been sued over, the Second Circuit says that red flag knowledge has to be determined on a work-by-work basis for only the works-in-suit. Given this growing divide between the Second and Ninth Circuits, it seems like only a matter of time before the Supreme Court will weigh in on the red flag knowledge standard. And if the Court does finally weigh in, one hopes it will put common sense back into the DMCA.

Categories
Copyright Infringement Internet Uncategorized

Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases

Here’s a brief excerpt of my new post that was published on IPWatchdog:

Here’s where we are after Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. This is so even if there’s copious evidence that its employees viewed and interacted with the specific infringing material at issue. No jury will ever get to weigh all of the evidence and decide whether the infringement is obvious. At the same time, any proactive steps taken by the service provider will potentially open it up to liability for having actual knowledge, so the incentive is to do as little as possible to proactively “detect and deal” with piracy. This is not at all what Congress intended. It lets bad faith service providers trample the rights of copyright owners with impunity.

To read the rest of this post, please visit IPWatchdog.