{"id":7364,"date":"2019-04-24T17:59:45","date_gmt":"2019-04-24T17:59:45","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7364"},"modified":"2026-02-03T20:39:14","modified_gmt":"2026-02-03T20:39:14","slug":"twenty-years-later-dmca-more-broken-than-ever","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2019\/04\/24\/twenty-years-later-dmca-more-broken-than-ever\/","title":{"rendered":"[Archived Post] Twenty Years Later, DMCA More Broken Than Ever"},"content":{"rendered":"

\"aWith Section 512 of the DMCA, Congress sought to \u201cpreserve[] strong incentives for service providers and copyright owners to cooperate to detect and deal<\/em> with copyright infringements that take place in the digital networked environment.\u201d[1]<\/a> 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\u2019s red flag knowledge standards.<\/p>\n

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\u2019s also clear that service providers have the duty to remove infringing content even without input from copyright owners. As the Senate Report notes, \u201cSection 512 does not require use of the notice and take-down procedure.\u201d[2]<\/a> And the knowledge provisions in Section 512 reflect this. Absent a takedown notice, service providers must, \u201cupon obtaining . . . knowledge or awareness\u201d of infringing material or activity, \u201cact[] expeditiously to remove . . . the material\u201d in order to maintain safe harbor protection.[3]<\/a><\/p>\n

Under Section 512, there are two kinds of knowledge that trigger the removal obligation without input from the copyright owner\u2014actual and red flag. For sites hosting user-uploaded content, actual knowledge is \u201cknowledge that the<\/em> material or an activity using the<\/em> material on the system or network is infringing<\/u>\u201d[4]<\/a> and red flag knowledge is \u201caware[ness] of facts or circumstances from which infringing activity is apparent<\/u>.\u201d[5]<\/a> Thus, actual knowledge requires knowledge that specific<\/em> material (\u201cthe<\/em> material\u201d) or activity using that specific<\/em> material (\u201cactivity using the<\/em> material\u201d) is actually<\/em> infringing (\u201cis infringing<\/u>\u201d), while red flag knowledge requires only general<\/em> awareness (\u201caware[ness] of facts or circumstances\u201d) that activity appears<\/em> to be infringing (\u201cis apparent<\/u>\u201d). There are similar knowledge provisions for search engines.[6]<\/a><\/p>\n

Importantly, actual knowledge refers to \u201cthe material,\u201d and red flag knowledge does not. It instead refers to \u201cinfringing activity\u201d\u2014and it\u2019s not the<\/em> infringing activity, but infringing activity generally.[7]<\/a> However, with both actual and red flag knowledge, the service provider is obligated to remove \u201cthe material.\u201d[8]<\/a> With actual knowledge, the service provider doesn\u2019t have to go looking for \u201cthe material\u201d since it already has actual, subjective knowledge of it. But what about with red flag knowledge where the service provider only knows of \u201cinfringing activity\u201d generally? How does it know \u201cthe material\u201d 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]<\/a>\u2014that is, once it has red flag knowledge\u2014it has to investigate and find \u201cthe material\u201d to remove.[10]<\/a><\/p>\n

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 \u201cone or more well known photographs of a celebrity at a site devoted to that person\u201d would not hoist the red flag since the images might be licensed or fair use.[11]<\/a> However, sites that are \u201cobviously infringing because they . . . use words such as \u2018pirate,\u2019 \u2018bootleg,\u2019 or slang terms . . . to make their illegal purpose obvious . . . from even a brief and casual viewing\u201d do raise the red flag.[12]<\/a> And a search engine \u201cthat views such a site and then establishes a link to it . . . must do so without the benefit of a safe harbor.\u201d[13]<\/a> Thus, Congress didn\u2019t want search engines worrying about questionable infringements on a small scale, but it also didn\u2019t 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 \u201cobviously pirate\u201d\u2014even if it\u2019s an entire website.[14]<\/a><\/p>\n

So how has Congress\u2019s 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]<\/a> Like the examples in the legislative history, The Pirate Bay has the word \u201cpirate\u201d in its title, and a brief viewing of the site reveals its obvious, infringing purpose. And it\u2019s not like Google hasn\u2019t been told that The Pirate Bay is dedicated to infringement\u2014nor that it needs to be told. According to data from the Google Transparency Report,[16]<\/a> 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.<\/p>\n

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\u2019s intent. They\u2019ve 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.<\/p>\n

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<\/em>, the Ninth Circuit held that domains such as illegal.net and stolencelebritypics.com\u2014the very sort of indicia mentioned in the legislative history\u2014were not enough to raise the red flag.[17]<\/a> According to the court, \u201cdescribing photographs as \u2018illegal\u2019 or \u2018stolen\u2019 may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen.\u201d[18]<\/a> While that\u2019s certainly possible, it\u2019s not likely. And it defies common sense. The Ninth Circuit concluded: \u201cWe do not place the burden of determining whether photographs are actually illegal on a service provider.\u201d[19]<\/a> But this misses the point, and it conflates red flag knowledge with actual knowledge.<\/p>\n

The Second Circuit in Viacom v. YouTube<\/em> held that the \u201cdifference between actual and red flag knowledge is . . . not between specific and generalized knowledge, but instead between a subjective and an objective standard.\u201d[20]<\/a> The court arrived there by focusing on the removal obligation, reasoning that \u201cexpeditious removal is possible only if the service provider knows with particularity which items to remove.\u201d[21]<\/a> And it rejected an \u201camorphous obligation\u201d to investigate \u201cin response to a generalized awareness of infringement.\u201d[22]<\/a> 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]<\/a><\/p>\n

The Ninth Circuit followed suit in UMG Recordings v. Shelter Capital<\/em>, holding that red flag knowledge requires specificity.[24]<\/a> The court reasoned that requiring \u201cspecific knowledge of particular infringing activity makes good sense\u201d because it will \u201cfoster cooperation\u201d between copyright owners and service providers \u201cin dealing with infringement\u201d online.[25]<\/a> This \u201ccooperation,\u201d according to the Ninth Circuit, would come from takedown notices sent by copyright owners, who \u201cknow precisely what materials they own, and are thus better able to efficiently identify\u201d infringing materials than service providers, \u201cwho cannot readily ascertain what material is copyrighted and what is not.\u201d[26]<\/a> 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\u2014separate provisions in Section 512.<\/p>\n

Perhaps the most significant gutting of red flag knowledge can be found in the Second Circuit\u2019s opinion in Capitol Records v. Vimeo<\/em>.[27]<\/a> 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]<\/a> But the Second Circuit disagreed that there was any jury question: \u201c[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\u2019s burden of showing red flag knowledge.\u201d[29]<\/a> That this gloss on red flag knowledge \u201creduces it to a very small category\u201d was of \u201cno significance,\u201d the Second Circuit reasoned, since \u201cthe purpose of \u00a7 512(c) was to give service providers immunity, in exchange for augmenting the arsenal of copyright owners by creating the notice-and-takedown mechanism.\u201d[30]<\/a><\/p>\n

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\u2014even if they welcome it\u2014so long as they respond to takedown notices. The end result is that an overwhelming amount of obvious infringements goes unchecked, and there\u2019s essentially no cooperation between service providers and copyright owners as Congress intended.<\/p>\n

\n

[1]<\/a> S. Rep. No. 105-190, at 40 (emphasis added); see also<\/em> H.R. Rep. No. 105-551(II), at 49.<\/p>\n

[2]<\/a> Id<\/em>. at 45; see also<\/em> H.R. Rep. No. 105-551(II), at 54.<\/p>\n

[3]<\/a> 17 U.S.C. \u00a7 512(c)(1)(A)(iii); see also<\/em> 17 U.S.C. \u00a7 512(d)(1)(C).<\/p>\n

[4]<\/a> Id<\/em>. at \u00a7 512(c)(1)(A)(i) (emphasis added).<\/p>\n

[5]<\/a> Id<\/em>. at \u00a7 512(c)(1)(A)(ii) (emphasis added).<\/p>\n

[6]<\/a> See<\/em> id<\/em>. at \u00a7\u00a7 512(d)(1)(A)-(B).<\/p>\n

[7]<\/a> See<\/em> 4-12B Nimmer on Copyright \u00a7 12B.04[A][1][b][ii] (\u201cBy contrast, to show that a \u2018red flag\u2019 disqualifies defendant from the safe harbor, the copyright owner must simply show that \u2018infringing activity\u2019 is apparent\u2014pointedly, not \u2018the<\/em> infringing activity\u2019 alleged in the complaint.\u201d (emphasis in original)).<\/p>\n

[8]<\/a> 17 U.S.C. \u00a7 512(c)(1)(A)(iii)<\/p>\n

[9]<\/a> S. Rep. No. 105-190, at 44 (\u201cThe \u2018red flag\u2019 test has both a subjective and an objective element. In determining whether the service provider was aware of a \u2018red flag,\u2019 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 \u2018red flag\u2019\u2013in other words, whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances\u2013an objective standard should be used.\u201d); see also<\/em> H.R. Rep. No. 105-551(II), at 53.<\/p>\n

[10]<\/a> Id<\/em> at 48 (\u201cUnder 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 \u2018red flags\u2019 of obvious infringement.\u201d); see also<\/em> H.R. Rep. No. 105-551(II), at 57.<\/p>\n

[11]<\/a> Id<\/em>.; see also<\/em> H.R. Rep. No. 105-551(II), at 57-58.<\/p>\n

[12]<\/a> Id<\/em>.; see also<\/em> H.R. Rep. No. 105-551(II), at 58.<\/p>\n

[13]<\/a> Id<\/em>. at 48-49; see also<\/em> H.R. Rep. No. 105-551(II), at 58.<\/p>\n

[14]<\/a> Id<\/em>. at 49; see also<\/em> H.R. Rep. No. 105-551(II), at 58.<\/p>\n

[15]<\/a> See<\/em> The Pirate Bay, available at https:\/\/www.thepiratebay.org\/.<\/p>\n

[16]<\/a> See<\/em> Google Transparency Report, available at https:\/\/transparencyreport.google.com\/.<\/p>\n

[17]<\/a> See<\/em> Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007).<\/p>\n

[18]<\/a> Id<\/em>. at 1114.<\/p>\n

[19]<\/a> Id<\/em>.<\/p>\n

[20]<\/a> Viacom Int\u2019l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012).<\/p>\n

[21]<\/a> Id<\/em>. at 30.<\/p>\n

[22]<\/a> Id<\/em>. at 30-31.<\/p>\n

[23]<\/a> See<\/em>, e.g.<\/em>, H.R. Rep. No. 105-551(I), at 26 (\u201cOnce one becomes aware of such information, however, one may have an obligation to check further.\u201d).<\/p>\n

[24]<\/a> UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).<\/p>\n

[25]<\/a> Id<\/em>. at 1021-22.<\/p>\n

[26]<\/a> Id<\/em>. at 1022.<\/p>\n

[27]<\/a> Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016).<\/p>\n

[28]<\/a> Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 537, 549 (S.D.N.Y. 2013) (\u201c[B]ased on the type of music the videos used here\u2014songs by well-known artists, whose names were prominently displayed\u2014and 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 \u2018red flag\u2019 knowledge of the infringing nature of the videos.\u201d).<\/p>\n

[29]<\/a> Capitol Records, 826 F.3d at 94 (emphasis in original).<\/p>\n

[30]<\/a> Id<\/em>. at 97.<\/p>\n

\n

I presented this at the Fordham IP Conference on April 25, 2019. My oral presentation is here<\/a>, and the accompanying slides are here<\/a>.<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

With Section 512 of the DMCA, Congress sought to \u201cpreserve[] 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.\u201d[1] Given the symbiotic relationship between copyright owners and service providers, Congress meant to establish an online ecosystem where both would […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10],"tags":[80,249,337,351,427,447,595,625,697,1028,1123,1141,1142,1209,1330,1344,1348,1377,1509,1541],"class_list":["post-7364","post","type-post","status-publish","format-standard","hentry","category-copyright","tag-actual-knowledge","tag-capitol-records-v-vimeo","tag-copyright-2","tag-copyright-owners","tag-devlin-hartline","tag-dmca","tag-general-knowledge","tag-google","tag-infringement","tag-notice-and-takedown","tag-perfect-10-v-ccbill","tag-pirate-bay","tag-pirate-sites","tag-red-flag-knowledge","tag-section-512","tag-service-providers","tag-shared-responsibility","tag-specific-knowledge","tag-umg-v-shelter-capital","tag-viacom-v-youtube"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7364","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7364"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7364\/revisions"}],"predecessor-version":[{"id":15716,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7364\/revisions\/15716"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7364"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7364"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7364"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}