Another Court Rejects Idea That DMCA Requires Proactive Approach From Service Providers

The very crux of the ongoing Viacom/YouTube lawsuit is whether or not the DMCA requires that a service provider, such as YouTube, proactively police the content on the site, perhaps via a filter tool. The lower court rejected that claim, saying that the DMCA is pretty clear that the service provider needs specific notice of infringing works (via takedown notices, for example). The entertainment industry and its supporters continue to argue that there is a mythological obligation of service providers to police their own site once they have general knowledge that there's some infringing works. Now we have yet another court ruling (and it's not the first) to completely reject this claim.

The lawsuit involves an artist who discovered some allegedly infringing copies of her work were available via the photo hosting site Photobucket. She sent some takedown notices, and then decided that she'd sent enough takedown notices, so Photobucket should be "on notice" about her works being infringed, and she expected the company to proactively police her works and keep them off the site. As Eric Goldman notes, the court made quick work of this argument, in explaining how it's simply wrong.

The requirement that DMCA-compliant notices identify and locate specific acts of infringement undermines Plaintiff's position, as her past notices do not identify and locate other, and future, infringing activity. The Court does not accept her invitation to shift the burden from her to Photobucket....Without receiving notices identifying and locating each instance of infringement, Photobucket did not have "actual knowledge" of the complained of infringements or "aware[ness] of facts or circumstances from which infringing activity is apparent."

The court also thinks too much of her complaint is that it's just too much work to police her own copyrights (an argument that Viacom has made as well):

Plaintiff contends that failure to grant her relief will require her to find infringing activity on Photobucket's site and report it to them through DMCA-compliant notices. She contends that this will be difficult and labor intensive. However, the purpose of her motion is to shift that same burden to Photobucket, without Photobucket having the benefit of knowing whether Plaintiff has authorized any of her works to be displayed on its site. While, as Plaintiff points out, Photobucket is the larger enterprise, the burden it would bear in having to continually search its site for infringing activity is heavy. Furthermore, saddling Photobucket with this responsibility is out of step with the DMCA, which, as noted above, places the burden of uncovering infringing activity on copyright holders.

The court also rejects the notion that Photobucket should be required to use a filter:

"Plaintiff concedes that such technology is very burdensome to implement and notes Photobucket's contention that it would not be feasible to use such technology."

It seems like a pretty clear and concise ruling that debunks the claims of many folks who regularly comment on this site.

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