Arizona Attorney - March 2013

believes the removal was a result of a “misidentification” or “mistake” of the material to be removed or disabled by the ISP, then the user/infringer can contest the author’s allegations of infringement by sending a Counter-notification to the ISP.

STEP 5. ISP promptly sends the author a copy of the actual Counter-notification. 49 If the ISP receives a Counter-notification, it must promptly forward a copy of the actual Counter-notification to the author.

STEP 6. ISP restores or enables the UGC if it receives a Counter-notification. 50 If the ISP receives a Counter-notification, it must restore or enable the UGC within 10 to 14 business days after the ISP’s receipt of the Counter-notification.

STEP 7. ISP removes or disables the UGC
permanently if it timely receives a copy of or
notice of a lawsuit brought by the author
against the user/infringer. 51
If the ISP has received a Counter-notifica-
tion and if the ISP receives, no later than 10
business days after the ISP’s receipt of the
Counter-notification, either a written notice
from the author that the author has filed a
lawsuit, or a copy of the lawsuit brought by
the author against the user/infringer and
the lawsuit seeks a court order to restrain
the user/infringer from engaging in infring-
ing activity, then the ISP must “permanent-
ly” remove or disable the infringing UGC
to avoid liability to the author for monetary
damages.

STEP 8. ISP terminates the account of the
user/infringer according to the ISP’s “repeat
infringer” policy. 52
The DMCA requires that the ISP terminate
the account of a “repeat infringer” in
“appropriate circumstances.” It is up to the
ISP to prepare a policy that defines “repeat
infringer” and the ISP must implement its
policy by strictly following it.

Conclusion

Pinterest and all other websites that allow UGC to be posted to their websites depend on the DMCA to ensure that they are not sued out of existence for copyright infringement. Since its enactment in 1998, the DMCA has withstood substantial court scrutiny; however, the safe harbors that immunize ISPs from liability from monetary relief for copyright infringement remain strong and intact. However, a new “willful blindness” standard may be applied in the near future to prevent many websites like Pinterest from being eligible for the DMCA safe harbors. Lawyers will turn to the DMCA to advise their ISP clients how to take advantage of the safe harbors for infringing UGC that is transmitted, cached, stored or indexed on their client’s servers, system, network or website. AZ AT

endnotes

1. www.pinterest.com. (last visited Jan. 9, 2013).

2. A&M Records, Inc., et al. v. Napster, Inc., et al., 239 F.3d 1004 (9th Cir. 2001); MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); On Jan. 19, 2012, seven individuals and two corporations were charged in the United States with running an international enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works, through www.megaupload.com.

3. DMCA, Pub. L. No. 105- 304, 112 Stat. 2860 (1998); 17 U.S.C. § 512 et seq. The DMCA protects qualifying ISPs from liability for all monetary relief for direct, vicarious, and contributory copyright infringement. H.R. Conf. Rep. No. 105-796, at 64; S. Rep. No. 105-190, at 18, 36; H.R. Rep. No. 105- 551, pt. 2, at 50. The DMCA also limits injunctive relief to qualifying ISPs. See 17 U.S.C. § 512(j).

4. 17 U.S.C. § 512(a)-(d).

5. The DMCA does not protect
the ISP from liability for copy-
right infringement for infring-
ing content provided by the
ISP. 17 U.S.C. § 512(a)-(d).

19. Id.

20. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); H.R. Rep. No. 105-551, pt. 2, at 49 (1998).

21. 17 U.S.C. § 512(b)-(d).

22. 17 U.S.C. § 512(c)( 2); 37 C.F.R. § 201.38.

23. www.copyright.gov/ onlinesp/.

24 See Napster, 239 F.3d at 1004.

25. 17 U.S.C. § 512(c)( 1)(A)(i).

26. See Napster, 239 F.3d at 1004.

27. 17 U.S.C. §512(c)( 1)(A)(i).

28. S. Rep. 105-190, S. Rep 190, 105th Cong., 2nd Sess., May 11, 1998, at 8-10.

29 3 NIMMER ONCOPYRIGHT, § 12B.04[A][ 1], at 12B- 49; Corbis Corporation v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004).

30. Corbis, 351 F. Supp. 2d at 1108.

31. Id.

32. H.R. Rep. No. 105-551, pt. 2, at 42.

33. Corbis, 351 F. Supp. 2d at 1108.

34. H.R. Rep. No. 105-551, pt. 2, at 42.

35. Viacom Int’l, Inc., et al. v. You Tube, Inc., et al., 676 F.3d

19 (2d Cir. 2012).

36. Id. at 35 (quoting United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir.1993)).

37 17 U.S.C. § 512(c)( 1)(A)(iii); 17 U.S.C. § 512(c)( 1)(C).

38. Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1143 (N.D. Cal. 2008); Costar Grp. Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704-05 (D. Md. 2001).