The Copyright Defense that Online Service Providers Should Consider More Often
Summary: Traditionally Online Service Providers such as Cloud and Tube service providers have relied on DMCA 512(c) as their core safe harbor defense. OSPs generally provide storage, caching, and bandwidth - each such service and related DMCA defense should be parsed out and not jumbled together - by doing so stronger defenses will emerge. There are weighty technical and legal arguments to support such an approach. If users were to make such potentially infringing files publicly available then the OSP would be covered under 512(a) for the infringements resulting from distribution using Cloud provider's network bandwidth, 512(b) for caching during the process, and 512(c) for allowing such storage in the first instance.
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Online Service Providers, such as Cloud and Tube providers (OSPs), should consider asserting a wider range of DMCA safe harbor defense arguments in U.S. copyright cases based on the alleged cause of the underlying infringements.
Cloud services and similar sites, like Tube sites, have argued that DMCA 512(c), storage at the request of a user, is in essence the exclusive and core safe harbor to protect such OSPs against copyright infringement claims. Viacom Int'l, Inc. v. Youtube, Inc., 676 F.3d 19 (2d Cir. 2012).
However 512(c) appears to be only one of a number of such DMCA safe harbors applicable to the Cloud storage and Tube site ecosystem - the others include 512(a) network bandwidth and (b) caching. If there is indexing or search results then possibly 512(d) is involved for an information location tool. Distilled down OSPs can be covered by more than one DMCA defense and ought to analyze what part of the OSP automated processes the alleged user infringement is "resulting from."
Here are the DMCA 512 OSP safe harbor defenses:
(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
(b) System Caching.—
(1) Limitation on liability.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which—
(A) the material is made available online by a person other than the service provider;
(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and
(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A),
if the conditions set forth in paragraph (2) are met.
(2) Conditions.— The conditions referred to in paragraph (1) are that—
(A) the material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A);
(B) the service provider described in paragraph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies;
(C) the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology—
(i) does not significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material;
(ii) is consistent with generally accepted industry standard communications protocols; and
(iii) does not extract information from the provider’s system or network other than the information that would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access to the material directly from that person;
(D) if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and
(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if—
(i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and
(ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.
(c) Information Residing on Systems or Networks At Direction of Users.—
(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(A)
(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;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
(2) Designated agent.— The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
(3) Elements of notification.—
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(B)
(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
(ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
(d) Information Location Tools.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider—
(1)
(A) does not have actual knowledge that the material or activity is infringing;
(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.
In the typical Cloud storage or Tube site ecosystem a user will sign up and then upload one or more files to a private cloud storage account for storage on a remote server. The files may be provided in an automated manner a unique deep link or URL. At this point, with a proper DMCA policy and agent in place, the OSP is protected under 512(c) namely storage at the request of the user. Costar Group, Inc. v. Loopnet, Inc, 373 F.3d 544 (4th Cir. 2004). Generally the user file backup to the cloud is protected by Fair Use. If things were simple we would stop here.
If the user then decides to add legal complexity and, for example, "make available" an mp3 file (in an unauthorized manner) to the public by posting a deep link on a public blog there is arguably no copyright infringement for merely "making available" in the absence of proof of infringing file transfers. Arista Records, Inc. v. Mp3board, Inc., (s.d.n.y. 2002), 00 Civ. 4660 No. (SHS) (S.D.N.Y. Aug 28, 2002).
However once a member of the public clicks on the public link to successfully download such mp3 file an arguable copyright infringement occurred against the user for an unauthorized distribution. Such a potential infringing distribution results from a transient communication from the third party's click request pinging the Cloud storage server and then using the network bandwidth of the Cloud OSP to fetch the file from the user's private storage, cache it for seconds in RAM, and provide it to the recipient's PC or mobile OS. In such instance any potential infringement involving the OSP automated processes "results from" use of the OSP's network connectivity for the "distribution" from the user to the recipient and thus appears covered under the language of DMCA 512(a) and 512(b). The recipient's bandwidth provider will also be covered under 512(a).
The Federal District Court in Napster when denying Napster's request for summary judgment under section 512(a) pointed out that files were not transferred over Napster's network and bandwidth but rather peer to peer between users. A M Records Inc. v. Napster Inc., (n.d.cal. 2000), No. C 99-05183 MHP (N.D. Cal. May 05, 2000).
Cloud and Tube services are different than Napster in that the file data travels via an automated process through the Cloud provider's transient memory (such as cache under 512(b)) and network bandwidth under 512(a) via the internet from the user's storage to the recipient.
The DMCA safe harbor arguments above for Cloud services apply generally to Tube sites. Indeed video file storage would fall under 512(c), caching under 512(b), and streaming from the user's video file to the recipient would arguably be covered under 512(a) as resulting from the tube service provider's bandwidth and transient network connectivity.
Live streaming initiated by a Tube site user to the recipient public tethered to the Tube site transient network and caching would provide a compelling example for Tube site provider 512(a) safe harbor coverage. Again the recipient's OSP would be covered under 512(a) as well.
Why is this important?
512(a) and (b) are more robust DMCA safe harbor protections for Online Service Providers and is not dependent on a "notice and take down" paradigm and certain other arguable conditions associated with DMCA 512 (c) and (d).
Please note that in certain instances such DMCA defenses may not be needed in order to defend a cloud storage provider as there could be a failure by plaintiff(s) to make out a secondary infringement claim such as a failure to show an OSP had volitional conduct or had proper notice such as in Netcom and its progeny. Rtc v. Netcom On-line Comm., (n.d.cal. 1995), 907 F.Supp. 1361 (N.D. Cal. 1995).
Disclosure: I represent as legal defense counsel Internet Service Providers.