Searching for an out: Rojadirecta, myVidster, and the knowledge components of the information location tool exemption of s. 512(d).

INTRODUCTION I. THE LAW AND HISTORY OF THE SAFE HARBOR PROVISIONS A. Internet Service Provider Definitions and Liability B. Text of the Digital Millennium Copyright Act § 512 C. Legislative History of § 512(d) II. ACTUAL AND RED FLAG KNOWLEDGE A. Actual Knowledge B. Red Flag Knowledge and Its Patent Roots C. Subjective vs. Objective: Actual vs. Red Flag Knowledge. III. APPLYING [SECTION] 5 12(D) TO THE ROJADIRECTA AND MYVIDSTER CASES A. The Rojadirecta Takedown B. The myVidster Case: Flava Works v. Gunter C. Do They Qualify for the Information Location Tools Exemption? CONCLUSION INTRODUCTION

With technology evolving at a dizzying pace and providing new opportunities to connect with others, the united states government has tried to stay ahead of Internet copyright infringers. Of particular frustration to the government are websites such as Rojadirecta (1) and myVidster. (2) These sites, among many others, provide Internet users with the ability to stream unauthorized, copyrighted video from third parties directly to their computers. seeking to take down the domains of these websites, the government withholds the site from any functionality. But many of these pending cases have been dismissed before the courts could decide on the claims' substantive merits. Assuming that these third-party linking websites would have otherwise met the threshold to be found liable for copyright infringement, each might possess a defense against their charges through the Digital Millennium Copyright Act (DMCA), specifically through its "safe harbor" exemptions in § 512.3 While the bulk of legal discussion on safe harbor defenses deals with the first three parts of § 512, the fourth--less invoked part of limitations on liability relating to material online--specifically provides an exemption for "information location tools," provided they meet certain criteria. (4)

This Comment will discuss the potential use of § 512(d) of the DMCA in connection with third-party video streaming websites, particularly the recent government seizures in Rojadirecta and litigation in myVidster. First, the Comment will examine § 512(d) of the DMCA, the various elements that comprise the section, and the legislative intent behind its drafting. second, the Comment will focus directly on the actual knowledge requirement within § 512(d)(1), and, in the absence of actual knowledge, the similarities in "red flag" knowledge to patent knowledge requirements. Finally, it will address the state of case law regarding websites such as Rojadirecta and myVidster, and analyze whether third-party linking websites such as these can legitimately claim to be information location tools or whether this section provides too much latitude for copyright infringers.

1. THE LAW AND HISTORY OF THE SAFE HARBOR PROVISIONS

   1. Internet Service Provider Definitions and Liability

      Two definitions exist within the Digital Millennium Copyright Act § 512 that define who qualifies as a "service provider" eligible for one of the safe harbor exemptions. The first is limited to § 512(a) and protects transitory digital network communications. (5) In § 512(k)(1)(A), a service provider is defined as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material sent or received." (6) This definition provides the working framework for the remaining three safe harbor exemptions. More broadly defined, a service provider is "a provider of online services or network services, or the operator of facilities thereof." (7) This broader definition encompasses "services such as search engines, websites (including retail sites), hosting services, bulletin board and newsgroup operators." (8)

      Tension also exists between the various liabilities for these service providers. Traditionally, three distinct types of liability can be attached to copyright infringers: direct, contributory, and vicarious. Direct infringement occurs when "[a]nyone ... violates any of the exclusive rights of the copyright owner." (9) The individual who violates those rights is directly liable for the infringement. But for a variety of reasons, litigation of direct infringers is not as common as it is for secondary infringers, the intermediaries. (10) Individuals or service providers who assist in direct infringement can be held contributorily or vicariously liable. Contributory infringement occurs when "[o]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another." (11) Vicarious liability occurs when "the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer." (12) These distinct forms of common law liability, which will be covered in further detail later in the Comment, "continue to exist as before, unaffected by the DMCA." (13)

      There does, however, exist some difference between the copyright infringement liability and common law causes of action. (14) If a service provider does not qualify for one of the safe harbor exemptions, it may instead argue that the copyright holder "has failed to make out a common law cause of action for contributory infringement or vicarious liability." (15)

      Additionally, a distinction exists between criminal and civil copyright infringement. While this Comment does not address criminal copyright infringement, (16) it is pleaded in the Rojadirecta case referenced in Section III(A). In short, "[a]ny person who willfully infringes a copyright ... for purposes of commercial advantage" (17) is criminally liable for copyright infringement. Additional provisions in § 506 account for the "reproduction or distribution ... of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000" (18) and the distribution of work "being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution." (19) But perhaps the most important distinction for the purposes of this Comment is that there is no secondary criminal copyright infringement. only direct infringers are held criminally liable.

   2. Text of the Digital Millennium Copyright Act § 512

      The Digital Millennium Copyright Act is divided into several specific limitations on liability relating to material online. Those who satisfy the elements for one of the safe harbor defenses are shielded from an award of monetary damages and often from injunctive relief.2 (0) Each exemption functions independent of each other. Failure to qualify for one exemption will not bar the party from asserting another exemption. § 512(a) addresses "transitory digital network communications." (21) It specifically covers service providers that act as conduits for the transmission of copyrighted work without modification. (22) The section allows for "a broad grant of immunity to service providers whose connection with the material is transient." (23) The Internet service provider (ISP) cannot actively select the recipients (24) or the material to be transmitted, (25) or it risks losing immunity. The computers pass along the transient information among users, and if these intervening computers must block indirectly infringing material, "[t]he Internet as we know it simply cannot exist." (26) This exemption is relatively straightforward and easy to identify, especially in comparison to both § 512(c) and § 512(d).

      § 512(b) protects against system caching, or the creation of temporary copies of copyrighted work for quick network archival access. (27) Quick access to these files allows for ISPs to prevent excessive network congestion and can be vital to the network's continued performance. Indeed, § 512(b) takes into account just how the Internet functions. To avoid uninterrupted transmission, caching "reduces waiting time, and ... service provider bandwidth loads" by sending the temporary or cached copy to the destination point instead of retrieving it from the original source again. (28)

      § 512(c), one of the more litigated sections within § 512, protects ISPs from liability when information residing on systems or networks at the direction of a third-party user is infringing. (29) Websites such as YouTube, Facebook, Twitter, and Flickr (among many others) allow users to store these copyrighted materials in such a manner where they are made publicly available, or at least amongst a select group of individuals that the user approves. Pivotal to this third section's limit on liability is a knowledge section that, for all purposes, functions nearly identical to the knowledge section in § 512(d).

      The final limit on liability in § 512 and the primary focus of this Comment is § 512(d), information location tools. (30) Information location tools can include directories, hypertext links, pointers, and other vital means of communicating online.31 Further, section (d) states that a service provider will not be found liable "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity." (32) In order to obtain the immunity, the ISP must not receive any financial benefit "directly attributable to the infringing activity," when the ISP has the "right and ability to control" the activity. (33) In all cases where the ISP has been notified of claimed infringement, the ISP must respond "expeditiously to remove, or disable access to" the infringing material. (34)

      But the immunity is also conditioned on satisfaction of three knowledge factors. The ISP must not have "actual knowledge that the material or activity is infringing." (35) Second, in the absence of actual knowledge, the...