WILMap: United States

LEGISLATION

 
[Creating safe harbors for ISPs against monetary liability for copyright infringing material posted or sent through an intermediary’s system. Unlike §230, DMCA safe harbors don’t prevent suit for injunctive relief against an intermediary nor protect all Internet intermediaries except the four classes of intermediaries: conduit providers such as telephone companies, those who store or cache content hosted by another, and those who host content posted by another, and search engines. Safe harbor is available only to an intermediary that “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.” To benefit from the safe harbors, intermediaries must establish, publicize and implement both a notice and takedown system for removing alleged infringing content and a system to identify and remove repeating infringers.]
 
Communications Decency Act 199647 U.S.C. § 230(c) 
 
[The Act provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. No cause of action may be brought and no liability may be imposed under any State or local law.] 
 
Trademark Act 194615 U.S.C. § 1114(2), §32(2)
 
[Providing a safe harbor from trademark infringement for publishers, which is also extended to online providers of content written by another.]

BILLS AND PENDING PROPOSALS

Stop Online Piracy Act (SOPA) of 2011, H.R. 3261, introduced in the House on October 26, 2011 (postponed)
 
[(1) This Bill was introduced to provide new tools to enforce online copyright infringment. These measures applied to "foreign infinging sites". This definition includes (i) U.S.-directed sites used by users in the United States; (ii) whose owners or operators are committing or facilitating the commission of criminal violations; and (iii) which would be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.
 
(2) The most relevant enforcement tools included (i) the requesting of court orders requiring Internet service providers to block access to the websites (ii) the requesting of court orders barring search engines from linking to the infringing websites, (iii) court orders barring advertising networks and payment facilities from conducting business with infringing websites, and (iv) expansion of existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison.
 
(3) After a wave of protests, culminated in the Internet Blackout on January 18, 2012, the House Judiciary Committee postponed consideration of the bill.] [See also SOPA & PIPA EFF page]
 
 
[This Bill is the Senate version of SOPA and a rewrite of COICA (see below). The Bill would give the US government and copyright holders additional tools to enhance "enforcement against rogue websites operated and registered overseas," which are dedicated to the sale of infringing or counterfeit goods.  The Senate Judiciary Committee passed the Bill, which was later placed on hold after a wave of protests from civil sopciety and tech industry (see above).] [See also SOPA & PIPA EFF page]
 
Combating Online Infringement and Counterfeits Act (COICA) of 2010, S. 3804, introduced in the Senate on November 18, 2010 (withdrawn)
 
[authorizing the Attorney General to bring an in rem action against any domain name "dedicated to infringing activities." Upon obtaining an order for relief, the registrar of, or registry affiliated with, the infringing domain would be compelled to "suspend operation of and lock the domain name." The bill passed the Senate judiciary Committee but, after negative public reaction, never received a full vote at the Senate. It was later resubmitted with amendments as the Protect IP Act.] 

DECISIONS

[For a complete coverage of cases applying Section 230 and other Internet cases, please see Professor Eric Goldman's Technology and Marketing Law Blog and Electronic Frontier Foundation's legal cases.]

Supreme Court

[Cable Services, Public Performance, Direct Liability, Secondary Liability]
 
[holding that “Aereo publicly performs copyrighted works, in violation of the Copyright Act’s Transmit Clause, when it sells its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air.” However, the dissenting opinion argued that turning a secondary liability case into a direct liability case is a mistake and may work serious injury to the general public. Justice Scalia strongly objected to the majority view and noted that “Aereo does not perform at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider [ . . . ] liability and adopting in their place an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come.”] [See CIS blog post]
 
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005)
[copyright, infringment, software, P2P file sharing, secondary infringment]
 
[Songwriters, music publishers, and motion studios brought copyright infringement action against distributors of a P2P file sharing computer networking software. The Supreme Court held that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.]
 
[copyright, infringment, device manufacturer, secondary liability, contributory liability, time shifting]
 
[Universal brought an action against Sony alleging that video tape recorder (VTRs) consumers had been recording some of Universal’s copyrighted works that had been exhibited on commercially sponsored television and thereby infringed on their copyrights, and further that Sony was liable for such copyright infringement because of their marketing of the VTRs. The Supreme Court held that "[t]he sale of the VTR's to the general public does not constitute contributory infringement of [Universal's] copyrights." The Court concluded that there was a significant likelihood that a substantial number of copyright holders who license their works for free public broadcasts would not object to having their broadcasts time-shifted by private viewers and that Universal failed to show that time-shifting would cause non-minimal harm to the potential market for, or the value of, their copyrighted works. ]
 

Lower Courts

Capitol Records LLC et al v. Vimeo LLC et al, No. 14-1048 (2nd Cir. 2016)
[copyright, hosting provider, user generated content, music, video, red flag]
 
[Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music (pre-1972) uploaded by its users. The 2nd U.S. Circuit Court of Appeals in New York held that the safe harbors provided by the Digital Millennium Copyright Act (DMCA) protect qualifying website operators from liability from such pre-1972 recordings, even though they are not covered by federal copyright law. The Court also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement]. 
 
Stephanie Lenz v. Universal Music Corp., 5:07-cv-03783-JF (9th Cir. 2015)
[copyright, hosting provider, user generated content, notice, take down, fair use]
 
[(1) The Court gave some breathing space to creators of User-Generated Content (UGC) from bogus takedown notices in cases of blatant misrepresentation of fair use defences by copyright holders and held that “the statute requires copyright holders to consider fair use before sending take-down notification.”  
 
(2) The Court also recognised the possible applicability of section 512(f) of the DMCA that allows for the recognition of damages in case of proved bad-faith, which would occur if the copyright holder did not consider fair use or paid “lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary.” However, the Court noted also that there’s no liability under § 512(f), “[i]f, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use.”]
 
[public order, public moral, decency, free speech, payment provider, Visa, Mastercard, hosting provider, Backpage, online advertising]
 
[(1) The Sheriff of Cook County, Illinois in an attempt to shut down Backpage.com’s advertising of sexual services sent a letter to Visa and MasterCard, demanding the companies to "immediately cease and desist from allowing . . . credit cards to be used to place ads on websites like Backpage.com." Visa and MasterCard complied and refused to process credit card transactions to purchase any ads on the website, including those for other services. (2) Backpage then filed a preliminary injunction against the Sheriff, but it was denied by the Northern District Court of Illinois. (3) On appeal, Judge Posner from the 7th Circuit Court of Appeals found the Sheriff in violation of the website's First Amendment right through "threatened imposition of government power or sanction" in an attempt to stifle protected forms of speech. According to Posner's decision, First Amendment protected platforms and intermediaries from government threats and coercion to remove unwanted speech.] [See also Columbia GFE]
 
Garcia v. Google, Inc., 743 F. 3d 1258 (9th Cir. 2014)
[copyright, infringement, performance, video removal, Innocence of the Muslims]
 
[The footage of an actress' minor role in an unreleased adventure film titled “Desert Warrior”, was modified and incorporated into an anti-Islamic film titled the "Innocence of the Muslims", which was later uploaded to Youtube. The actress then received death threats from an Egyptian cleric. After Google refused to take it down from Youtube, plaintiff actress sought a restraining order seeking removal and that posting of the video infringed the copyright in her performance. 9th Circuit Judge Kozinski ruled for the actress, holding that she had an independent copyright interest in her performance (although filmmaker had an implied license to use her performance, the filmmaker exceeded the bounds of the license); and that the actress faced irreparable harm absent an injunction.]
 
[copyright, DMCA, hosting provider, Veoh, music publisher, direct liability, contributory liability, vicarious liability, inducement]
 
[Music publisher brought action against operator of publicly accessible website, Veoh, which enabled users to share videos with other users and website’s investors, alleging direct and secondary copyright infringement. District court dismissed the claims against investors and granted summary judgment to website operator. Circuit judge held that Veoh was entitled to the DMCA safe harbor protection, that is the site has no obligation to police for infringing content on its site, and that publishers failed to state claims against investors for contributory infringement, vicarious liability and inducement of infringement.]
 
Capitol Records, LLC v. ReDigi Inc., 934 F.Supp.2d 640 (S.D.N.Y. 2013)
[copyright, infringement, first-sale doctrine, digital music, cloud computing]
 
[Capitol Records (CR), a record company, sued ReDigi, which operated an online marketplace for buying and selling pre-owned legally downloaded music, for copyright infringement regarding reproduction and distribution rights in sound recordings owned by CR. The Court held in favour of the plaintiff-copyright holder and rejected ReDigi’s “first sale” and “fair use” defenses. The Court sustained that Redigi's directly infringed CR's copyrights. In particular, the Court held that (1) ReDigi’s making unauthorized transfers of digital music files over the internet was reproduction and distribution for the purpose of copyright protection; (2) the “first sale” doctrine did not cover ReDigi’s distribution of CR’s copyrighted works; (3) ReDigi was also liable for contributory infringement and vicarious infringement of CR’s copyrights.]
 
Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012)
[copyright, DMCA, hosting provider, video-sharing website, YouTube]
 
[Viacom, owners of copyrighted videos field infringement action against owner and operator of website that allowed users to upload video files free of charge. Second circuit held that actual knowledge or awareness of facts or circumstances that indicated specific and identifiable instances of infringement was required to disqualify online service provider from DMCA safe harbor.]
 
Capitol Records, Inc. v. MP3Tunes, LLC821 F.Supp.2d 627 (S.D.N.Y. 2011)
[copyright, infringement, DMCA, hosting provider, cloud computing]
 
[(1) Capitol Records, which owns copyrights in sound recordings, musical compositions, and images of album cover art, sued MP3Tunes, an online music storage service provider whose website allows users to store music files in their personal online music “lockers." On MP3Tunes, users can search for and transfer songs to their lockers. (2) The Court held in favor of MP3Tunes. The Court found that MP3Tunes qualified for safe harbor under DMCA, except when the songs were transferred from certain unauthorized websites. In this regard the Court noted that “[i]f enabling a party to download infringing material was sufficient to create liability, then even search engines like Google or Yahoo! would be without DMCA protection. In that case, the DMCA’s purpose — innovation and growth of internet services — would be undermined." (3) However, the Court also noted that MP3Tunes had actual knowledge of its users had stored and continued to have access to the infringing works, and it materially contributed to its users’ infringement when it failed to remove the infringing songs after receiving takedown notices.]
 
Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008)
[assault, liabilitysocial network, CDA, minor ]
 
[Social networking site, Myspace faced a claim for liability arising from an assault on a minor by a nineteen-year-old man whom she met through MySpace. Family of the girl sued Myspace for negligence in not verifying her age during registration. The Fifth Circuit held that Myspace is protected under §230 of Communication Decency Act.]
 
Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007)
[copyright, infringment, search engine, thumbnails, direct liability, secondary liability]
 
[Perfect 10, an adult entertainment magazine providing a subscription-only service online. Third party website publishers posted Perfect 10’s images on their own sites and were searchable on Google, violating Perfect 10’s terms of service as well as copyright. Perfect 10 sued Google for framing and hyperlinking to those websites on their image search service. The Court held Google not liable and Google’s search constituted a fair use of Perfect 10’s images because the use was highly transformative.]
 
RIAA v. Verizon Internet Services, 351 F.3d 1229 (D.C. Cir. 2003)
[copyright, access provider, ISP, p2p, conduit, DMCA 512(h)]
 
[Record Industry Association of America (“RIAA”) served, Verizon, an Internet Service Provider (ISP) with subpoena under DMCA 512(h), seeking to identify subscribers whom it believed had infringed their members’ copyrights by trading large amount of digital music files via P2P file sharing programs. RIAA filed motion to compel production. The District Court granted RIAA's motion, denied Verizon’s motion to quash and ordered to disclose the identity of the subscribers. The Court of Appeal reversed and remanded with instructions that Verizon is acting as a conduit for p2p file sharing, which does not involve the storage of infringing material on its servers.]
 
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
[copyright, p2p file sharing, software producer, direct liability, vicarious liability]
 
[Record companies and music publishers brought copyright infringement action against Napster, an Internet service that facilitated the transmission and retention of digital audio files by its users. Circuit judge held injunctive relief was proper to impose duty to provide notice of copyright status upon plaintiffs, duty on service to search for copyrighted works that were subject of notice given by plaintiffs, and courts can require ISPs to use new filtering mechanism.]

OTHER RESOURCES

Center for Democracy & Technology, Intermediary Liability, https://cdt.org/issue/free-expression/intermediary-liability 
Electronic Frontier Foundation, https://www.eff.org
Eric Goldman's Technology and Marketing Law Blog, blog.ericgoldman.org [including a discussion of all Section 230 cases so far decided]
The Takedown Project, http://takedownproject.org/

CONTRIBUTORS

Giancarlo F. Frosio
Email: gcfrosio at law.stanford.edu
 
Bolin Zhang
University of Arizona 
Email: bolin at email.arizona.edu

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