How Quickly Do Internet Companies Need To Take Content Down Following A DMCA Notice?

from the questions-questions dept

By now, you should be mostly aware of the DMCA's "notice-and-takedown provisions." Most elements of it have been litigated to death, and while there are still a few points of contention (such as what really constitutes "red flag knowledge"), a lot of the key points are pretty well settled in the law. But, there are always opportunities for new questions to be raised -- and it's kind of incredible that this particular one hasn't been that widely litigated: just how quickly does a service provider need to act in pulling down content upon receipt of a takedown notice? The law 17 USC 512(c) just says "expeditiously":
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.
But... what is "expeditiously?" It's a vague enough word, subject to lots of interpretation, and now we've got a case that is likely to test if "48 hours" is expeditiously. It involves fight promoter Square Ring (owned by boxer Roy Jones Jr.) suing live streaming video site UStream, over its supposed failure to takedown livestreams of a boxing match between Roy Jones Jr. and Omar Sheika from March of 2009. Square Ring claims it warned UStream ahead of time and then sent three DMCA takedowns during the event. However, UStream responded to Square Ring two days later, saying the links in the takedown notices had been taken down. Square Ring says that's too long and UStream should lose its DMCA safe harbor protections. It also argued a bunch of other things, all of which the court rejected. However, on the question of "is 48 hours expeditiously" the court wouldn't make a summary judgment and wants the case to go to trial.

The court easily rejected Square Ring's argument that the DMCA safe harbors somehow don't apply to live broadcasts. Square Ring argued that such events are not covered because Congress "could not have foreseen the possibility of streaming live events on the internet in 1998 when the legislation was passed." But, as UStream pointed out (and the court agreed) that's just wrong:
Square Ring cites no evidence for this assertion while UStream provides a number of examples of live internet broadcasts occurring in the years prior to 1998.... The court is not persuadeded that Congress intended to exclude live broadcasts from safe harbor protection and will proceed through the statutory analysis.
However, on the expeditious question, the court basically says "well, no one's really looked at this, so let's go to trial."
The court is persuaded, not by Square Ring's lengthy and convoluted attempts to utilize 17 U.S.C. 411(c) nor by its self-serving declarations, but rather by the complete lack of legal precedent for this factual situation. The court is not prepared to make a factual determination as to whether UStream acted expeditiously as required by the safe harbor provision. A number of questions of fact exist as to what precisely was done during the time period in which UStream received the March 17, 2009 notices and the ultimate takedown on March 23, 2009, a full fortyeight hours after the DMCA-compliant notices were received.

For the above reasons, the court concludes that there are material issues of fact that warrant proceeding to trial.
As Eric Goldman points out in the link above, a jury trial has a high likelihood of a bad result for UStream -- in part because a jury may assume (totally incorrectly) that it's magically easy for a company like UStream to find and kill off "infringing" live stream events. People who don't quite understand how these things work always seem to assume that it's easy to just "know" what's infringing and to kill it, without recognizing (1) the massive scale of streaming videos that need to be analyzed and (2) the risk of taking things down too fast, thereby killing perfectly legitimate content. As Goldman notes:
I assume Square Ring opted for a jury trial, and a jury would be a dangerous place for UStream. Outsiders can easily imagine that Internet companies can make copyright infringing activity magically disappear at no cost with zero turnaround time (see, e.g., every Congressional hearing on online copyright issues). I think the risks are even higher for a pay-per-view plaintiff, where the video goes from hot news to mostly archival information quickly, perhaps in a matter of hours. Further, a jury is more likely to evaluate UStream’s handling of these takedowns in isolation, instead of considering the many hundreds of thousands of other takedowns–many of which are bogus or tendentious–that UStream processed in a reasonable manner. A good lawyer can help tell UStream’s story to the jury, but I think it will be hard for a jury to absorb that message.
Given that, I wonder if UStream will just look to settle the case to make it go away. It would be nice to get a ruling on the record that gives companies the necessary flexibility, but I fear that the result could be the opposite -- setting up some arbitrary and impossible standard (especially for smaller companies), which expects near real-time responses to takedown notices.

Filed Under: dmca, expeditious remval, takedown
Companies: square ring, ustream


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  • identicon
    andyroo, 30 Jan 2015 @ 1:46pm

    Jury trial.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 1:49pm

    It is possible

    Near real time responses, in fact automated real time responses are possible, but only if there is no review period whatsoever. I doubt the jury would understand that caveat though, no matter how hard you try to explain it to them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Jan 2015 @ 2:02pm

      Re: It is possible

      The fully automated real time response is exactly what the legacy copyright holders want for the takedown, but with weeks or months for them to review any challenges.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 1:51pm

    Hey, at least it's not a Grand Jury trial. Those things are fucking FUBAR.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Jan 2015 @ 2:10pm

      Re:

      Grand Juries are NOT trials; they are hearings. And one sided at that.

      (I do agree they're sometimes FUBAR, though.)

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 30 Jan 2015 @ 2:22pm

        Re: Re:

        Further, grand juries do not determine guilt or innocence. They only determine if there is enough evidence for the case to proceed in court, where a real jury will be hearing it.

        reply to this | link to this | view in chronology ]

    • identicon
      PRMan, 30 Jan 2015 @ 2:26pm

      Re:

      Grand Juries only decide if there is enough evidence in a criminal proceeding to go to trial. Since the cops are pretty much experts in gathering evidence in most cases, almost all of them go to trial (unless they are protecting their buddies, in which case the prosecutor flip-flops and argues AGAINST a trial).

      It's VERY rare for a Grand Jury to not send someone to trial, because prosecutors don't like to be embarrassed and generally won't charge somebody unless there's a pretty good case (they would drop it or settle it with a plea agreement).

      reply to this | link to this | view in chronology ]

  • identicon
    andyroo, 30 Jan 2015 @ 1:56pm

    Jury trial.

    Surely a Jury would find that the DMCA is not fit for purpose and give everyone at least 7 days to take down content , and even more time if they really understood the problem. And yes because this is live viewing it is more important for the content license but then again is his rights more important than the thousands of people that will have their legal content taken down due to trying to rush through takedowns.
    Also the cost involved could come up and other issues that the Jury could say gives the rightsholder too much power and that the websites should have 21 days to take content down when requested.

    reply to this | link to this | view in chronology ]

  • icon
    Rapnel (profile), 30 Jan 2015 @ 2:32pm

    How quickly?

    Pfft... it shouldn't have been up in the first place. Every second counts. Five minutes? You owe me meeleonz!

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 30 Jan 2015 @ 3:12pm

    Strange

    So..
    Someone WAS streaming the event?
    And how did it get to Ustream?
    Someone re-directed the steam they were receiving?
    Someone included it in the Streaming services?

    This is a live stream, and the signal/data was coming from Somewhere..
    So, unless someone signed up to Stream through Ustream and HID/FAKED there information, there should be a Data point of origination..
    So WHO sent the stream?
    That is the info i would want..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 3:23pm

    I have a problem with this: "Square Ring claims it warned UStream ahead of time"

    Warned how? Are the live streams given a URL ahead of time? How can you put in a DCMA before and infringement occurs? And with all the automated infringement notice bots and shady companies sending out notice after notice, a good lawyer could argue that 48 hours is too short of a time to investigate the validity of the claims.

    Sounds like Square Ring wants priority over any other claims coming in due to the nature of their "property." Deeper digging into the process could make an uphill battle for Square Rings' case.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 4:56pm

    Logic?

    Square: Block all the live streams of our event on your site.

    UStream: Ok, sure. What does the footage look like?

    Square: We don't know it is a live event.

    UStream: How do expect us to block something if you don't know what it is you want us to block?

    Not a lawyer but sounds like a solid argument to me to make the jury understand.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 7:10pm

    As Eric Goldman points out in the link above, a jury trial has a high likelihood of a bad result for UStream -- in part because a jury may assume (totally incorrectly) that it's magically easy for a company like UStream to find and kill off "infringing" live stream events.

    Maybe the jury will assume that UStream is an expert in the business of streaming and find accordingly. In which case a bad result for UStream is both likely and warranted.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 7:37pm

    When threatened with lawsuits, it's not unsual for user-provided content hosting companies, such as Megaupload or Astraweb, to be pressured into giving copyright owners and their hired guns direct server access to delete content at will.

    This is the "gold standard" that all copyright enforcers seek to achieve, one way or the other.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 30 Jan 2015 @ 8:08pm

    I wonder what would happen if they showed a jury a single screen displaying each video uploaded to YouTube in a single hour. So that the flood of content providers have to deal with can be made clear.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jan 2015 @ 11:07am

      Re:

      UStream: "I'd like to display how much content is uploaded to the our site every hour."
      Square Ring: "Objection, not relevant to the case."
      Judge: "Objection held."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2015 @ 10:10pm

    How quickly did Viacom take off their own infringing content that they put online themselves after Viacom issued a demand requesting that said content be taken down?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2015 @ 12:15am

    I'd like to see more polls on this site. Here's a subject for a new one:

    What color hoodie goes best with red crocs?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2015 @ 1:44am

    Let me put it this way:

    If the law isn't clear and concise, it's bad law.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2015 @ 3:22am

    If this passes then Google will face even more of a nightmare from the AA's with more demands to remove links from the DMCA notices within 48 hours or else be sued into oblivion. The AA's will no doubt applaud and cheer from the rooftops should this pass and will do everything to ensure that Google removes every link or be sued.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2015 @ 10:01am

    1 dollar for each takedown.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2015 @ 6:39pm

    At the hosting provider where I work, DMCA takedowns are generally handled by forwarding the notice to the customer and giving them two business days to remove the content. After this period expires, if the content is still present, we take action. It's done this way to allow the site owners to remove the content claimed as infringing without someone on our staff possibly breaking something on the customer's site because we aren't familiar with the website coding.

    Our lawyers seem to think that two business days is expeditious. Something else to consider in cases of livestreaming is whether a provider's DMCA-handling staff is even in the office and able to respond to a request at the time the stream occurs. My company's legal department is not 24/7, for example.

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 31 Jan 2015 @ 8:47pm

    Confused

    "...March 17, 2009 notices and the ultimate takedown on March 23, 2009, a full fortyeight hours after..."

    OK - my math aint all that good, but are we talking working hours - 8 hour days - here. Does the DMCA notice only cover working hours??

    That's 6 full days between the 17th and 23rd, so in order to get 48 hours, one has to see each day as only eight hours long, or assume that we're talking about working hours, like 9AM to 5PM.

    When did anything on the "Internet" have working hours??

    S'up?

    ---

    reply to this | link to this | view in chronology ]

  • icon
    Dave Howe (profile), 1 Feb 2015 @ 2:45am

    There is another solution of course...

    UStream could build an automation system - content providers upload a DMCA notice, go to offending urls, select the notice from a pulldown, hit "sure" to a box asserting that they claim the material is infringing, a genuine human has indeed checked this isn't a false positive or fair use, and that they would like the entry removed, and hey bingo, it gets replaced by a message saying it was taken down by the content provider and referencing the DMCA notice and the terms of use for the service.

    Of course, to *qualify* for an account on the system, the content provider would need to sign an agreement that they will carefully check each and every takedown under the system, and should they take down a link that wasn't infringing, would be liable for UStream's legal costs and compensation of $500 to the uploader - but hey, that's fine, yes? they aren't going to use a comparebot or blanket-select hundreds of urls without checking, so it shouldn't matter...

    (and it creates a brand new revenue stream for eager young users; if you can create a link that looks infringing to a bot but isn't, hey, $500 a pop :)

    reply to this | link to this | view in chronology ]

  • identicon
    ehdf, 2 Feb 2015 @ 1:39am

    another layer

    It can act as a double edge sword for internet companies. Anyways, it is too early to comment of this DMCA notice.

    reply to this | link to this | view in chronology ]


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