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Safe Harbors: Section 512, Direct Infringement and Secondary Liability 555
something more than the ability to remove or block access to materials posted on a
service provider’s website.” MP3tunes, LLC, 821 F.Supp.2d at 645. The remaining—and
more difficult—question is how to define the “something more” that is required.
To date, only one court has found that a service provider had the right and ability
to control infringing activity under § 512(c)(1)(B). In Perfect 10, Inc. v. Cybernet
Ventures, Inc., 213 F.Supp.2d 1146 (C.D.Cal.2002), the court found control where the
service provider instituted a monitoring program by which user websites received
“detailed instructions regard[ing] issues of layout, appearance, and content.” The service
provider also forbade certain types of content and refused access to users who failed to
comply with its instructions. Similarly, inducement of copyright infringement under
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, (2005), which
“premises liability on purposeful, culpable expression and conduct,” might also rise to
the level of control under § 512(c)(1)(B). Both of these examples involve a service
provider exerting substantial influence on the activities of users, without necessarily—
or even frequently—acquiring knowledge of specific infringing activity.
In light of our holding that § 512(c)(1)(B) does not include a specific knowledge
requirement, we think it prudent to remand to the District Court to consider in the first
instance whether the plaintiffs have adduced sufficient evidence to allow a reasonable
jury to conclude that YouTube had the right and ability to control the infringing activity
and received a financial benefit directly attributable to that activity. . . .
Questions:
1.) Explain succinctly why the court finds that § 512(c)’s limits are not the same as those
imposed by vicarious liability.
2.) Is § 512(c) a limit against direct infringement? Secondary infringement? Both?
3.) Copyright holders in the entertainment industries were outraged by the YouTube
ruling. Imagine you are acting for the RIAA and MPAA. What is your principal critique?
4.) Explain what “red flag knowledge” means. Use examples.
5.) YouTube itself has now implemented a fascinating, and apparently effective, system
called Content ID, which allows rights-holders to register digital fingerprints of the works
they own with YouTube. If such a work is subsequently uploaded to YouTube by someone
else, Content ID allows the rights-holder to block, track or monetize the work. Blocking
the work keeps it off YouTube. Tracking the work gives the rights-holders a wealth of
valuable demographic data from YouTube’s files—people who watch Justin Bieber also
love Katy Perry. Serves them right. (In the academic literature, this is referred to as
“mutually assured desecration.”) Those who listen to Tori Amos are likely to have
ineffectual constitutional advocates, and so on. Rights holders who choose to “monetize”
the videos will get a share of any advertisements played alongside the video. All of this is
done through code (software recognition of uploaded video) and contract (agreements with
rightsholders). What does all this have to say about the future of copyright law? To the fair
use provisions in particular? To the law of secondary liability? To the meaning of § 512?