Nod, Nod, Bling, Bling: The Knowledge Predicate and Personal Enrichment

YouTube, Grouper, Bolt: What do these companies have in common? A lot of hot air about the safe harbor provisions of the U.S. Copyright Act, also known as the “DMCA”. Speficially, the safe harbor as found in Section 512 of the Copyright Act.

Most people think that the safe harbor provides protection for a website that uses infringing works unless the copyright owner notifies the offending website that they are infringing. That group includes EFFluviati groupie Bambi (yes, I didn’t make that up) Bambi Francisco who writes an opinion column for Market Watch.

Think about that for a second, no more, just one second. Why would any copyright owner in their right mind agree that it is the copyright owner’s burden to catch the wrong doer and that the infringer otherwise can run and skippy scott free?

Easy answer: You’d be right. That’s not what the law says.

Section 512 requires that the website come to the law seeking protection–with clean hands. Meaning, you can’t be hiding your head in the sand and ignoring copyright infringement occuring on your website and then ask for protection when you’re caught. That would be an extraordinarily juvenile interpretation of a very serious rule that found its way into our jurisprudence in the US by a path that started in Geneva many years ago.

If it was the law that you could promote yourself as the biggest source for illegal copyrighted materials that you could copy and maintain on your servers until you were caught. You could get rich off of the backs of authors and artists and publishers and record companies and unions and the kid who sells maps to the stars’ homes. You’d be YouTube.

For example, Section 512(c) says:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated
by or for the service provider, if the service provider—

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

Note: this “knowledge” is separate from a notice under the notice and takedown section, and is not connected to the notice and takedown process. This kind of knowledge is just if you, oh, say read a news story in which Doug Morris said he was about to sue you out of existence because you are infringing Universal’s copyrights. Or knew that works protected by, or likely protected by, copyright were on your system–and particularly if you were copying them yourself. It also places a burden on the service provider to act in the absence of a notice and take down letter.

Or, for example, you bought a company that you knew at the time was engaged in massive copyright infringement. In order to take advantage of the safe harbor, you would have to “act expeditously” to stop that bad behavior.

In fairness, there hasn’t been a lot of litigation interpreting this provision, but there’s about to be. This is my view, and I think the view of quite a few other people.

Now this is likely not the view of these sections that is held at the Stanford madrassah of one Professor Lessig. Yet there is not only an inherent logic to this interpretation of the provisions of Section 512, this interpretation has the benefit of being consistent with the plain language of the statute. Also what Mommy taught you–or should have taught you–at the breakfast table. And then there’s that great hallmark of our jurisprudence in the Judeo-Christian tradition with equivalents in most other cultures, the good old Ten Commandments.

The current problem for the acolytes of Professor Lessig is that this time it’s not some thinly capitalized revolutionaries who are going to take the fall for following his advice.

It’s Google.