Academic journal article Boston University Law Review

Three Notice Failures in Copyright Law

Academic journal article Boston University Law Review

Three Notice Failures in Copyright Law

Article excerpt

Introduction

In Notice Failure and Notice Externalities, Peter Menell and Michael Meurer explore how notice failures resulting from the fuzzy boundaries of intellectual property entitlements produce negative externalities for developers of new resources, particularly in the information technology sector, where the problem of uncertain patent scope is widely recognized.1 This article takes a different tack on notice failures and their costs. Shifting focus from resource development to rights enforcement, specifically online anti-piracy enforcement, it considers the nature, effects, and means of correcting three instances of notice failure in copyright law.

The first two instances- "red flag" knowledge under the Digital Millennium Copyright Act2 ("DMCA") and ex parte domain name seizures under the Prioritizing Resources and Organization for Intellectual Property ("PRO-IP") Act of 20083-involve a legislative failure to appreciate that notice is necessary for the production of predictable and fair legal outcomes. The third instance of notice failure-injunctions against nonparty online intermediaries in civil "pirate site" cases-involves a judicial failure to appreciate that notice alone does not give courts jurisdiction over strangers to the litigation before them.4 Each of these notice failures is associated with a different aspect of copyright enforcement in the digital environment. All of them create externalities in the form of higher operating costs and increased legal risk for a wide range of online intermediaries, including search engines, cloud storage services, social media platforms, domain name registrars, payment processors, advertising networks, and content delivery networks ("CDNs").

I. Uncertain Notice: "Red Flag" Knowledge Under the DMCA

Early Internet cases reached conflicting conclusions concerning the appropriate rubric under which to analyze the copyright liability of online intermediaries for their users' infringements. Were online intermediaries liable as direct infringers, as the court held in Playboy Enterprises, Inc. v. Frena,5 a 1993 case involving the sharing of copyrighted photos on an electronic bulletin board service ("BBS")?6 Or were they liable only as secondary infringers, as another court held two years later in Religious Technology Center v. Netcom On-line Communication Services, Inc.,7 a case involving similar facts?8 As courts across the country grappled with cases of first impression involving copyright liability and online content distribution, congress recognized that the prospect of unlimited legal exposure for Internet intermediaries threatened to stifle both innovation in online services and investment in network infrastructure.9 In light of the dynamic state of affairs in the courts, Congress enacted the safe harbors in Title II of the DMCA to create a cooperative enforcement regime between rights holders and service providers that would give service providers the certainty they needed to grow their platforms.10

The safe harbors give service providers relief from monetary damages for claims of direct and secondary copyright infringement.11 In return, service providers must assist rights holders with online enforcement by removing illegal copyrighted content from their systems when they learn about it.12 It sounds like a simple bargain, but the devil is in the details, of which there are very, very many.13 Almost twenty years after the DMCA's passage, rights holders and online intermediaries continue to fight costly and protracted legal battles focused on the scope of the safe harbors and what conditions service providers must fulfill to come within them.14 Almost inevitably, these disputes concern contributory infringement and the question of how and when a service provider acquires actionable knowledge of infringement.15 Entangled with that question is another: What kind of notice can confer actionable knowledge under the statute? Normatively speaking, the answer to the notice question should be relatively transparent, given that the safe harbors exist to provide legal certainty for intermediaries concerning their exposure to copyright infringement claims. …

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