By Jim Rosenfeld and George WukosonThe U.S. Court of Appeals for the Second Circuit’s June 16, 2016, decision in Capitol Records, LLC v. Vimeo, LLC was a victory for internet service providers who host third-party content. It plugged a major loophole in the Digital Millennium Copyright Act (DMCA) safe harbor for information stored on a service provider’s system or network at the direction of a user, 17 U.S.C. § 512(c), by holding that the safe harbor applies to pre-1972 sound recordings. It also forcefully reaffirmed that a service provider must have either actual or “red flag” knowledge of specific copyright infringement—rather than merely generalized knowledge of infringing activity on its system—and fail to remove the infringing material expeditiously in order to lose the safe harbor and be held liable for that infringement.

The Second Circuit’s decision last week in Capitol Records, LLC v. Vimeo, LLC was a victory for internet service providers who host third-party content. It plugged a major loophole in the DMCA safe harbor for information stored on a service provider’s system or network at the direction of a user, 17 U.S.C. § 512(c), by holding that the safe harbor applies to pre-1972 sound recordings. It also forcefully reaffirmed that a service provider must have either actual or “red flag” knowledge of specific copyright infringement—rather than merely generalized knowledge of infringing activity on its system—and fail to remove the infringing material expeditiously, in order to lose the safe harbor and be held liable for that infringement.

endants, when a company issues a takedown against a video on your YouTube channel, you have a tough decision to make. First, you can file a counter-notification (or Counter-notice) and challenge the takedown, for example, say you have a license or believe you have fair use rights. However, when you file a counter notice, you have to agree to jurisdiction in California where YouTube is heardquarted. This means, if you are a Defendant in China, India, or Europe, you are consenting to jurisdiction in California and you can be hauled into the Northern District Court in Northern California. Before anyone ever files a counternotification, they should consult with a copyright lawyer to see where they stand. Do you really have fair use rights? Should you just let the video be taken down and move on, are you prepared to be sued in California? These are serious questions that should be considered. Also, Viral DRM has made claims that the DMCA counter-notices are filed in bad faith under 17 U.S.C. 512(f) as they claim there was no "mistake or misidentification" in the takedown. So, as a threshold matter, it is always wise to think it through before taking action to file a counter-notice.JURISDICTIONAL ALLEGATIONS IN THEIR COMPLAINTThey do a pretty thorough job of laying out allegations supporting their argument that the court has proper jurisdiction.2. This is an action arising under the Copyright Act, 17 U.S.C. §§ 501, 512(f), 1202.3. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1338(a).4. Defendant is subject to personal jurisdiction in California and jurisdiction is proper in this district court.5. Jurisdiction is proper in California because Defendant is transacting business within California by using the YouTube platform that Google operates from within California to (a) commit acts of infringement, (b) profit from acts of infringement, (c) commit CMI violations, (d) profit from CMI violations, (e) submit false and bad faith put-bac

The Complaint alleged that AOL was liable for copyright infringement under traditional theories of either direct or vicarious liability and/or contributory infringement. AOL moved for summary judgment, seeking dismissal on the grounds that (1) no reasonable trier of fact could conclude, from the evidence, that it was liable for copyright infringement; and (2) at any rate, AOL was shielded from liability pursuant to the “safe harbor” provision of the Digital Millennium Copyright Act (“DMCA” or “the Act”).Enacted in 1998, the DMCA, 17 U.S.C. § 512, established limitations on liability for copyright infringement of works available online. The Act identified certain categories of service providers—such as those that transmit, cache, or link—that cannot be held liable for certain acts of infringement by subscribers if they comply with specific provisions addressing those particular technologies and come within the DMCA’s “safe harbor” provisions.

Online service providers that allow users to store or post content (essentially, any interactive website) must submit new copyright agent registrations using the newly-established U.S. Copyright Office electronic system by December 31, 2017. Failure to do so by that date will prevent online service providers from claiming the safe harbor from copyright infringement liability established under 17 U.S.C. § 512(c) of the Digital Millennium Copyright Act (DMCA).[1]Who Should Designate an Agent?

Conversely, however, such a far-reaching decision places the burden directly on the copyright owners, making it difficult for them to protect their copyrighted works that are published on-line. The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law (17 U.S.C. § 512) passed as a part of the 1998 Digital Millennium Copyright Act (DMCA). Its goal is to strike a balance between the competing interests of copyright owners and digital users.

Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). Title II of the DMCA—the Online Copyright Infringement Liability Limitation Act—created a safe harbor to shield online service providers that store infringing material from liability for copyright infringement if they comply with certain requirements specified in the statute. 17 U.S.C. § 512. One such requirement is that service providers must “expeditiously” remove material that is claimed to be infringing. 17 U.S.C. § 512(c)(1)(C).

The defendants moved for summary judgment that they are entitled to the protection of the safe harbour, because they had insufficient notice, under the DMCA, of the particular infringements in suit. The Court examined the DMCA’s safe-harbour provisions, 17 U.S.C. § 512(c), (m) and (n). The Court found that defendant YouTube operates a web site onto which users may upload video files free of charge.

All companies that conduct business online should take note of a potential upcoming renewal deadline for the “safe harbor” from copyright infringement liability. Online service providers seeking safe harbor under 17 U.S.C. § 512(c) of the Digital Millennium Copyright Act (DMCA) [1] must designate a copyright agent with the U.S. Copyright Office and renew that designation at least once every three years. Failure to do so will negate the online service provider’s ability to claim the safe harbor from copyright infringement liability under § 512(c).

To benefit from the Section 512(c) safe harbor, a storage provider must establish that the infringing content was stored “at the direction of the user.” 17 U.S.C. § 512(c)(1). The statute does not define “user” and until recently, no court had interpreted the term.