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For a service provider to get safe harbor protection despite its infringement, it must not know of the infringement, and the infringement cannot be apparent. It must also take down or prevent access to the infringing material as soon as it learns about it or receives a Digital Millennium Copyright Act notice. And it must not directly benefit financially from the infringement in situations when it can control the activity. There is an additional condition on safe harbor eligibility: the service provider must have a policy to terminate users who repeatedly infringe on copyrights, and it must implement that policy reasonably.
Ventura Content, the plaintiff, creates and distributes pornographic movies. Ventura found 33 clips on Motherless from movies it had created and had not licensed to Motherless. The infringing clips were anywhere from 20 seconds to 46 minutes long, mostly 15 minutes or longer. It is undisputed that the clips infringed on Ventura's copyright. Eight users uploaded the 33 infringing clips. Lange terminated two of these users by 2012 (after this litigation began), one for repeat copyright infringement. Ventura did not send DMCA notices or any other sort of takedown notice for the infringing material. Nor did Ventura remove the material itself, as Motherless's software link enabled it to do. Ventura's first notice of infringement to Motherless was this lawsuit. After Lange was served with the complaint in this case, he asked Ventura to send him the URLs for the infringing clips so that he could delete them. Ventura did not respond the first time Lange asked for the URLs, so Lange asked again. Ventura answered his follow-up request. On the day that Ventura gave Lange the URLs, Lange deleted the infringing clips. Still, Ventura sued Motherless and Lange for copyright infringement under federal law and for unfair business practices under California law. The district court granted summary judgment in favor of Motherless and Lange on the federal copyright claim, and dismissed the state claim without prejudice.
Was Motherless entitled to claim the protection of the safe harbor provision of the Digital Millennium Copyright Act?
Section 512(c) says that, subject to additional conditions discussed below, a service provider will not be liable "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." Firstly, Lange did upload thousands of pictures and videos from his old site, Hidebehind.com, when he first established Motherless in 2008. However, those uploads amount to only 6% of what the site now carries. He has not uploaded any material to the site since he started it with his old material. Lange and his contractors did not upload any of the 33 clips over which Ventura claims copyright ownership. There was no evidence that any of the Hidebehind.com tranche infringed on anyone's copyright. That material therefore did not establish liability here. Ventura also argued that Lange was not entirely passive because he screened out child pornography, bestiality, and copyright infringement that he spots. The argument was that by screening out this material, Motherless effectively directs what is posted instead of enabling posting "at the direction of a user." But Ventura cited no authority for the unlikely proposition that screening out illegal material eliminates the safe harbor shield. Indeed, section 512(m) says that the law should not be construed to eliminate the safe harbor because a service provider monitors for infringement or disables access to material where the conduct depicted is prohibited by law. Motherless screens out child pornography because it is prohibited by law. It screens out bestiality because a few European countries prohibit bestiality pornography by law, and some of Lange's European advertisers voiced concerns about this content. It was thus counterintuitive, to put it mildly, to imagine that Congress intended to deprive a website of the safe harbor because it screened out child pornography and bestiality rather than displaying it. Instead, section 512(m) must be read to say that Congress expressly provided that such screening does not deprive a website of safe harbor protection. Finally, Ventura argued that because Motherless groups together the tagged videos and pictures so that users can find what they want, it was Motherless, rather than the user, who directs the "storage." But Lange testified, and Ventura does not dispute, that his editorial principle was as announced on the site: "anything legal stays." Ventura merely argued that this case can be distinguished from opinions which applied the safe harbor to sites that screen and alter content. As in UMG Recordings v. Shelter Capital Partners, Motherless's users, not the website, decide what to upload and what file names and tags to use. The Court’s holding in UMG disposes of the argument that altering the file format to make it accessible before posting, and enabling users to apply search tags to uploads, took the posting of the content out of the "at the direction of a user" definition. It also disposed of the argument that being anything more than an electronic storage locker, such as by facilitating user access to files that other users posted, deprives the website of safe harbor protection.
Secondly, Ventura's arguments for "apparent" awareness are similar to its arguments for actual knowledge. And the same reasons for absence of knowledge apply. There is nothing about the Ventura clips that would make infringement apparent. That is not to say that Motherless did not know that infringement was probably occurring on its website. It is hard to imagine that a site with 12.6 million pictures and video clips uploaded by users would not contain some material that users had uploaded without authorization. It is also hard to imagine that Lange and his contractor would have spotted all the infringing videos with the few seconds of viewing they gave to each one. The copyright owner must show knowledge, actual or red flag, for the videos that infringed its copyright and are the subject of its claim. And for red flag knowledge, infringement must be apparent, not merely suspicious. Thus, even if it were obvious to a reasonable person that some of the material on the site must be infringing, that is not enough to lose the safe harbor. It must be obvious that the particular material that is the subject of the claim is infringing. Here, it would not be obvious to a reasonable person that the clips excerpted from Ventura movies were infringing.
Finally, with regard to the expeditious removal of the infringing material. In this case, the infringing videos had no Ventura identification, and the site had more than a half-million videos, so as a practical matter what Motherless needed to remove them was a URL for each. Ventura did not send Motherless a statutory notification before filing suit. When Lange was served with Ventura's complaint, he asked Ventura to provide him with the URLs to the infringing clips so that he could delete them. Ventura did not initially respond. Subsequently, Ventura provided the URLs after Lange followed up on his initial request. Lange deleted the 33 infringing clips the same day. That satisfied the "responds expeditiously to remove" requirement.