By Thomas Carey. Chair of our Business Practice Group
The Digital Millennium Copyright Act (DMCA) insulates on-line service providers from copyright infringement claims if they:
BitTorrent sites, in turn, help users identify files available for copying on third-party computers using peer-to-peer technology (think “Grokster” on steroids, but constructed to better distance the website from the infringing activity).
The ever-thorny problem is that a tremendous number of the videos and files that are available on or through these websites infringe the rights of copyright holders.
Both YouTube and isoHunt derive their revenue largely from advertisers, not from subscription fees. YouTube’s servers actually contain the infringing material; isoHunt merely directs users to peer-to-peer networks where it can be found.
YouTube’s internal studies estimate that 75% – 80% of all YouTube streams contain copyrighted material. IsoHunt has no such internal documents. Yet YouTube has so far escaped liability based upon the DMCA safe harbor, while isoHunt has not. What accounts for this different result?
These cases involve an active dialogue between two courts of appeals that cite each other in their opinions: the Second Circuit, which took up the YouTube appeal; and the Ninth Circuit, which heard the isoHunt appeal.
The two courts agreed on two key aspects of the DMCA safe harbor: The question of constructive knowledge of infringement (which they call “Red Flag Knowledge”) requires actual knowledge of facts and circumstances that would lead a reasonable person to conclude that infringing activity was taking place; and the element of control referred to in the third qualification for safe-harbor protection listed above must involve something more than the ability to locate infringing material and terminate users’ access to it. (More)
- Have a robust take-down policy,
- Do not tolerate infringement of which they have actual or constructive knowledge, and
- Do not receive a financial benefit directly attributable to infringing activity that they have the right and ability to control.
BitTorrent sites, in turn, help users identify files available for copying on third-party computers using peer-to-peer technology (think “Grokster” on steroids, but constructed to better distance the website from the infringing activity).
The ever-thorny problem is that a tremendous number of the videos and files that are available on or through these websites infringe the rights of copyright holders.
Both YouTube and isoHunt derive their revenue largely from advertisers, not from subscription fees. YouTube’s servers actually contain the infringing material; isoHunt merely directs users to peer-to-peer networks where it can be found.
YouTube’s internal studies estimate that 75% – 80% of all YouTube streams contain copyrighted material. IsoHunt has no such internal documents. Yet YouTube has so far escaped liability based upon the DMCA safe harbor, while isoHunt has not. What accounts for this different result?
These cases involve an active dialogue between two courts of appeals that cite each other in their opinions: the Second Circuit, which took up the YouTube appeal; and the Ninth Circuit, which heard the isoHunt appeal.
The two courts agreed on two key aspects of the DMCA safe harbor: The question of constructive knowledge of infringement (which they call “Red Flag Knowledge”) requires actual knowledge of facts and circumstances that would lead a reasonable person to conclude that infringing activity was taking place; and the element of control referred to in the third qualification for safe-harbor protection listed above must involve something more than the ability to locate infringing material and terminate users’ access to it. (More)
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