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

Copyright

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