Pierre Grosdidier for Law360: A DMCA Win For Online Service Providers In Colo.

08/03/2015

The Internet is inundated with user-uploaded text, pictures, music and videos, many of which are subject to copyright protection. This material appears to be available — gratis — at the click of a mouse on various media-hosting websites owned and managed by online service providers (“OSPs”), e.g., YouTube. This online divertissement may be a violation of copyright law when the copyright owners do not grant permission to display their material. Each instance of infringing material may also be a breach of contract because the OSPs’ terms of use invariably forbid users from uploading copyrighted material absent permission from the rightful owners. 

In BWP Media USA Inc., v. Clarity Digital Group LLC, the court addressed the issue of who is a “user” under the Digital Millennium Copyright Act’s safe harbor provision, 17 U.S.C. § 512. No. 14-cv-00467, (D. Colo. Mar. 31, 2015). The significance of this decision is that OSPs can benefit from § 512 even when their own employees upload infringing copyrighted material on the OSP’s websites. An OSP’s liability for the posting of infringing material by its employees, at least in the District of Colorado, will likely turn on § 512(c)(1)(A), i.e., on whether the OSP knew or should have known of the infringement and what it did about it, not on the definition or scope of the term “user.” But even though § 512 imposes no obligation on OSPs to police their users, OSPs might be well advised to be alert to “facts or circumstances from which [their employees’] infringing activity is apparent,” and to act “expeditiously” when such activity is discovered.[1]

Excerpted from Law360. To read the full article, click here (subscription required).

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