Advanced Copyright Issues on the Internet - Fenwick & West LLP

awareness of the infringement, responds expeditiously to remove or disable access to theinfringing material. 1782The service provider can become aware of infringing activity either by notice from thecopyright holder (or its authorized agent) or by virtue of other facts or circumstances of which itbecomes aware. Absent direct notice from the copyright holder or its agent, the standard ofawareness of infringing activity appears by its terms to require more knowledge on the part ofthe service provider than a “should have known” (or reason to know) standard. Specifically, itrequires that the service provider have actual awareness of facts from which infringing activity isapparent. The legislative history describes the standard of awareness as a “red flag” test. “[I]fthe service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, itwill lose the limitation of liability if it takes no action. The ‘red flag’ test has both a subjectiveand an objective element. In determining whether the service provider was aware of a ‘red flag,’the subjective awareness of the service provider of the facts or circumstances in question must bedetermined. However, in deciding whether those facts or circumstances constitute a ‘red flag’ –in other words, whether infringing activity would have been apparent to a reasonable personoperating under the same or similar circumstances – an objective standard should be used.” 1783Section 512(c)(3) specifies the requirements for proper notice of infringement by thecopyright holder to the Service Provider, which constitutes a written communication provided tothe designated agent of the Service Provider that includes “substantially” the following: 17841782 Section 512(c) provides: “A service provider shall not be liable for monetary relief, or, except as provided insubsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage atthe direction of a user of material that resides on a system or network controlled or operated by or for theservice provider, if the service provider –(A)(i) does not have actual knowledge that the material or an activity using the material on the system ornetwork is infringing;(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringingactivity is apparent; or(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, thematerial;(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which theservice provider has the right and ability to control such activity; and(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove,or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”1783 H.R. Rep. No. 105-551 Part 2, at 53 (1998).1784 Section 512(c)(3) provides: “Elements of notification –(A) To be effective under this subsection, a notification of claimed infringement must be a writtencommunication provided to the designated agent of a service provider that includes substantially the following:(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusiveright that is allegedly infringed.(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrightedworks at a single online site are covered by a single notification, a representative list of such works at that site.- 388 -