Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation

from the expanding-the-law dept

As you might imagine, I rarely agree with the American Intellectual Property Law Association (AIPLA) on its positions. While there are plenty of "IP" lawyers who I know well and talk to frequently -- many of whom seem to agree with my position on things -- it's no secret that the belief that "IP is all good" and "more IP is better" tends to be a bit more common among such practitioners than the views in the other direction. In fact, if you asked me, I would have just assumed that the AIPLA was 100% behind Viacom in its lawsuit against Youtube/Google. So, consider me quite surprised that the main part of the AIPLA's amicus brief in Viacom's appeal of the YouTube case is actually siding with YouTube and saying that Viacom's argument (as we've said) goes way too far.

Specifically, the AIPLA points out that Viacom's belief that "general knowledge" of infringing content should disqualify safe harbors makes little sense, and is clearly not Congress' intention, as seen from the DMCA itself and the Congressional record:
AIPLA urges this Court to affirm the district court's holding that more than a generalized knowledge of infringement is required to deprive an Internet service provider ("ISP") of the protection of the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). The district court correctly held that the DMCA requires either "actual knowledge" of specific instances of infringement, or awareness of "facts or circumstances" from which specific instances of infringing activity are apparent. Whether based on actual knowledge or awareness of facts or circumstances, the level of knowledge that is sufficient to strip the ISP of its protection under Section 512 of the Copyright Act, as amended by the DMCA is knowledge of specific instances of infringement. The district court's holding is consistent with the legislative history of the DMCA and relevant case law. AIPLA urges this Court to reject Viacomís broad attempt to deprive Internet service providers of the benefits of the safe harbor provisions of the DMCA based on generalized knowledge that infringing activity is occurring on a site.
The AIPLA brief highlights how the Congressional record clearly shows that both the House and Senate said that "defective" DMCA notices need not be followed, and there should be no liability for not following such a notice. Yet, if Viacom's argument is correct, then a defective DMCA notice would still serve as "general knowledge" of infringement or a "red flag" that would require further investigation. Yet, both houses of Congress specifically rejected that position -- and with it Viacom's main argument.

There are two other parts of the AIPLA's brief which actually suggest points that ask the court to push back on two elements of the district court's summary judgment ruling, but those are smaller points compared to the "main event" question of whether or not general knowledge or specific knowledge are needed to trigger takedowns. It's surprising, but nice to see the AIPLA come out in favor of the only interpretation that makes sense to many of us: you can't be expected to police content if you haven't actually learned that it is, in fact, infringing.

Filed Under: actual knowledge, copyright, dmca, red flags
Companies: aipla, google, viacom, youtube

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  1. icon
    Mike Masnick (profile), 8 Dec 2010 @ 11:17pm

    Re: Re: Re:

    I don't think the AIPLA added the word "specific" on accident. I think they're misstating the law intentionally.

    That's quite a claim. I'm curious (genuinely) why you think the AIPLA -- a group who normally sides with your position on things -- would do that?

    The text of the statute does not require the item and location specificity that the district court said are required.

    But how do you respond to the points about how defective DMCA notices do not require any further action.

    What it comes down to, is that I can't see how you can both say that only valid DMCA notices matter *and* that red flag infringement loses you liability. The two simply cannot work together.

    In the end, I think what happened is that when Congress (well, the labels/studios...) wrote this part of the DMCA were thinking about two very different scenarios. The "red flag" was not talking about a situation like YouTube at all, but now Hollywood is trying to use it to expand the DMCA and effectively remove the safe harbors they agreed to only after a long fight with the ISPs. If I were thinking evilly, I'd suggest that the "red flags" language was put in on purpose to undermine the safe harbors, but I'm not sure the entertainment industry lobbyists are really that clever.

    Either way, if your interpretation is correct, then the safe harbors are effectively superfluous as well. So. That leaves us in a troubling spot. You claim we can't interpret the law in a way that leaves one section superfluous, but either way that happens.

    In that case, I think you have to go with the interpretation that is actually *reasonable* and that's the one where the safe harbor applies. And while you dismiss the legit videos being uploaded, I think you are doing so much too quickly, without recognizing how ridiculous that position is. The chilling effects of such a position makes it effectively impossible to run a user-generated content platform.

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