Erin Response Paper

Aggregate Infringement is Irrelevant to § 512 Safeharbors

The DMCA § 512 safeharbors shift the burden of identifying infringing material from service providers to copyright owners. As the legislative history makes clear, no amount of infringing material on a site will shift that burden back.

Both the House and Senate Reports call § 512(c)(1)(A)(ii) a “red flag” that should make a provider aware of infringing material or activity. Although neither specifically addresses whether the aggregate volume of infringing material could serve as such a red flag, both imply it could not by discussing red flags only with respect to the copyrighted status of an individual work. The House Report observes that the absence of a watermark or other copyright management information might constitute a red flag, but that service providers have no obligation to seek out such information. The Senate Report clarifies that “neither actual knowledge nor awareness of a red flag may be imputed to a service provider based on information from a copyright owner or its agent that does not comply with the notification provisions of subsection (c)(3).” Notices under subsection (c)(3) must identify particular instances of infringing material, not merely aggregate amounts of infringing material. Thus, the mere knowledge that a large amount or percentage of the material on a site is infringing cannot serve as a red flag triggering a provider's responsibility to remove infringing material. The Senate Report further explains that “activity” in (c)(ii) does not refer to an aggregate amount of infringement, but rather to individual uses of particular material on the site.

Moreover, the Senate Report explains that a service provider should not lose the safeharbor under subsection (c)(1)(B)'s direct financial benefit prong if the provider obtains the same benefit from noninfringing as from infringing uses: “a service provider conducting a legitimate business would not be considered to receive a 'financial benefit directly attributable to the infringing activity' where the infringer makes the same kind of payment as non-infringing users of the provider's service.” This presumably holds equally true for ad-supported services. Although one might read the Senate's language to mean that an overwhelming amount of infringement renders a business illegitimate, such an imputation of illegitimacy is foreclosed by the Supreme Court's decisions in Sony Corp. v. Universal City Studios, Inc. (Designing a product or service in a way that allows infringing uses cannot be the sole grounds for liability.) and MGM Studios, Inc. v. Grokster, Ltd. (Intent to induce infringement cannot be presumed from the volume of infringing material on a service.). The aggregate amount of infringing activity therefore constitutes neither the constructive knowledge nor the financial benefit that would move a provider outside the safeharbor.

Responses

Your account of the legislative history is fairly convincing. But I wonder what sort of policy argument justifies a provision like (c)(ii) that does not trigger, even if a site's content is 90-99% infringing content? At some point, a past track record ought to be enough aggregate amount that an OSP would be on notice that any new content has a very high chance of being infringing. --Mgalese 18:35, 28 March 2008 (EDT)

• If a site contained nothing but infringing material and Obama's speech about race in America, I'd still say the benefits outweighed the harms. Allowing broader dissemination of information and culture is a hugely good thing, and, incidentally, the goal copyright was originally supposed to serve. But even without a pro-speech ideology, there are common law and normative reasons to immunize even providers who host a disproportionately large amount of infringing material. Sony and Grokster focus on the potential for future uses, not only current uses; innovation often disrupts existing business models, and it's dangerous to let established companies veto their upstart competition. --erin 09:59, 31 March 2008 (EDT)

• I guess what I find troubling here is that you're relying on a balancing argument. That assumes, without any good evidence, two things: 1) That the positive current or discounted future benefits outweigh the costs and 2) that these benefits would not be generated in the absence of shielding legislation. See my response paper on what I might think about the ability of central planners to figure out what types of sites might satisfy these two assumptions. Even if you're comfortable with the assumptions, and you think a 90% copyright infringing site satisfies them, what about 99%? 99.99%? At some point, your balancing argument must seemingly collapse, but (c)(ii) never does.--Mgalese 10:51, 31 March 2008 (EDT)