Category Archives: DMCA

Is an Interactive Website Responsible for the Unlawful Uploading of Copyrighted Materials by Its Users?

Should a website be responsible for all of the material that is uploaded by its users? Under what circumstances should a website be liable for direct and/or secondary copyright infringement?  
These questions were addressed in Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 26-28 (2d Cir. 2012). That case involved a claim against YouTube (“Defendant”). As all of us know, it enables users to upload and view video clips free of charge. Before users are permitted to upload their videos they have to register. The registration process includes a “terms of use agreement” which states that the user “will not submit material that is copyrighted…unless [he is] the owner of such rights or ha[s] permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein.” Id. at 28.
This case arose when users nonetheless uploaded infringing material in derogation of the terms of use agreement. When YouTube was notified about the presence of infringing material, it took steps to remove it from the site. Nonetheless, Viacom and Premier League (“Plaintiffs”) filed suit against YouTube alleging direct and secondary copyright infringement.
The District Court denied Plaintiffs’ motion and granted summary judgment to Defendant. The District Court explained that YouTube qualified for Digital Millennium Copyright Act (“DMCA”) safe harbor protection with respect to all claims. The DMCA states that an Internet Service Provider (which includes a site, such as YouTube that hosts posts from unrelated third parties) is immune from suit when all it does is host the content without the requisite degree of knowledge that it is infringing. Once it has that degree of knowledge, it must remove the material under a procedure that provides both the poster and the aggrieved party to address the dispute.
Plaintiffs argued on appeal to the Second Circuit that general awareness of the presence of infringing material on Defendant’s site made them ineligible to receive safe harbor protection. Defendant argued that general awareness of infringement was not enough to remove internet service providers from the protection of the DMCA. Rather, specific and identifiable infringements of individual items were required. 
Thus, the issue on appeal was whether “actual knowledge” under the DMCA safe harbor 17 U.S.C. § 512 requires a general awareness that there are infringements, or rather means actual or constructive knowledge of specific and identifiable infringements of individual items.
The DMCA’s Online Copyright Infringement Liability Limitation Act, establishes a series of four “safe harbors” that allow qualifying service providers to limit their liability for claims of copyright infringement based upon;

(a) “transitory digital network communications,”
(b) “system caching,”
(c) “information residing on systems or networks at [the] direction of users,” and
(d) “information location tools.”
 17 U.S.C. § 512(a)-(d).

In its holding, the Second Circuit analyzed § 512(c)(1)(A) which states that the safe harbor will apply only if the service provider:

(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;

The Court explained that § 512(c) requires knowledge or awareness of specific infringing activity. It focused on the fact that under § 512(c)(1)(A) knowledge or awareness alone does not disqualify the service provider. Rather, the provider that gains knowledge or awareness of infringing material activity retains safe harbor protection if, under § 512(c)(1)(A)(iii), it acts expeditiously to remove or disable access to the material. The Court concluded that the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material because “expeditious removal is possible only if the service provider knows with particularity which item to remove.” Id. at 30.
Ultimately, the Court held that YouTube was not liable for direct and/or secondary infringement. This is because “general awareness” was not enough to strip YouTube of its safe harbor protection. Additionally, the Court noted that YouTube took down infringing material in an expeditious manner when it did have “actual notice” of the presence of the infringing material.

The DMCA Does Not Bar the Unlocking or Jailbreaking of Mobile Phones

On July 26, 2010, James H. Billington, the Librarian of Congress, issued a statement relating to the Digital Millennium Copyright Act (“Copyright Act”). Under the Copyright Act, the Librarian of Congress is required every three years to “determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.” Id. at 1.
In his statement, he designated six (6) classes of works. “Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.” They are as follows:
  1. Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances
    • Educational uses by college and university professors and by college and university film and media studies students
    • Documentary filmmaking
    • Noncommercial videos
  2. Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
  3. Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network
  4. Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if
    • The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
    • The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
  5. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.  A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and
  6. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.” 


© 2009 Nissenbaum Law Group, LLC