Decoding the DMCA Safe Harbors

January 27, 2009

I have just finished writing a draft of an essay titled “Decoding the DMCA Safe Harbors.

The Essay analyzes some of the key uncertainties about the DMCA safe harbors that may figure into the copyright lawsuits against YouTube.

The Abstract:

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA’s relationship to vicarious liability, and the so-called “red flags” theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the “loophole” theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a “red flags” theory by requiring knowledge of facts that show specific and “obvious” or “blatant” infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly “safe” harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.

You can download a copy from SSRN by clicking on this link and clicking from there the “Download” button.


UK committee says YouTube should police videos

July 31, 2008

News:  The Culture, Media, and Sport select committee in the UK has recommended that YouTube and other video sharing sites monitor their sites more proactively for inappropriate content, in order to protect kids.  (More)  Hat tip: techdirt.


Mediaset sues YouTube in Italy for copyright infringement

July 31, 2008

News: YouTube was sued again for copyright infringement, this time by Mediaset in Italy for allegedly infringing its programs in 4,643 unauthorized clips on YouTube. Mediaset seek 500 million Euros ($779 million US). More.

Analysis: YouTube already faces 2 major copyright lawsuits in the U.S. (one by Viacom for $1 billion and a class action lawsuit, both in NY). YouTube also was sued by Telecinco in Spain, and some news reports indicate that YouTube lost. The lawsuit in Italy just adds to YouTube’s headaches. The U.S. cases will test the scope of the DMCA safe harbors. I am not sure whether Spain and Italy have any comparable safe harbor.


EMI sues VideoEgg + Hi5 for copyright infringement

June 28, 2008

News: Michael Arrington at Techcrunch has the complaint filed by EMI today against VideoEgg + Hi5. Once I read the complaint, I’ll provide some analysis.


MIT Free Culture’s “YouTomb” website — tracking DMCA notices

June 3, 2008

News: One of my students showed me this nifty website founded by some bright kids at MIT.  The group is called MIT Free Culture — I take it inspired by Larry Lessig — and it tracks 230,348 videos on YouTube to see how many are removed for alleged copyright violations.  So far, 4,948 such videos removed from YouTube, presumably based on DMCA notices.

Analysis:  These are interesting numbers. Of course, we don’t know how many of these copyright claims were legitimate.  And we don’t know how MIT Free Culture chose its sample.  So, putting aside all those variables, the number of DMCA notices seem rather low — by my math, a little over 2% of the total videos in the sample.  So that suggests that a lot of the content on YouTube is not infringing or copyright holders don’t mind.


Warner Brothers v. Seeqpod

January 29, 2008

News:  Seeqpod is a search engine that locates music files on the Internet and allows you to play whatever you find on a music player that appears on the Seeqpod page.  The music is not stored on Seeqpod, as I understand it, but on third party sites that are identified in the search engine.

Warner Brothers Music has sued Seeqpod for copyright infringement.  Seeqpod will be invoking one of the safe harbors under the DMCA for search tools.  Ars Technica has an excellent discussion, as does EFF’s Fred von Lohmann.

Analysis:  I’ll have more to say after I read the complaint.


Robert Tur copyright case dismissed as he requested, over YouTube’s opposition

October 24, 2007

News: Robert Tur (of LA News Service who shot the famous footage of Reginald Denny’s beating) was the first person to sue YouTube for copyright infringement. Well, after other plaintiffs (with deeper pockets) later sued YouTube in other jurisdictions, Tur decided to have his case dismissed to join one of the class action suits in New York. That way, Tur won’t have to pay legal fees himself, but can free ride on the work of the attorneys already in the case.

In a somewhat unusual move, YouTube opposed the dismissal, basically desiring the case in California to proceed forward (or presumably have Tur’s claims completely extinguished). The district court, however, ruled in favor of Tur, allowing him to join the other case in New York. (More)

Analysis: YouTube probably felt relatively good about its chances of prevailing in California and hoped to score a first victory that could influence other courts. We’ll now see which court will be the first to decide in 2008.

For more about all the copyright cases against YouTube, visit here.