Perfect 10 Loses Again, As Court Says DMCA Notices Need To Be Properly Filed
from the red-flags? dept
Just last week we were talking about Perfect 10's lawsuit against Google in Canada, where we noted that in Perfect 10's own bragging press release, it effectively admits that its takedown filings were not properly filed. They admit that they just sent images to Google saying that it owned the images, without telling Google where they were actually located to take down. This was the same charge that Rapidshare recently made against Perfect 10, noting that the company seemed to purposely not want companies to take down their images, so that it could sue.Thankfully, in the US version of the lawsuit (in which Perfect 10 seems to lose over and over and over again), the judge noted this failure by Perfect 10 to properly file DMCA takedown notices and dismissed large parts of the lawsuit. Similar to what Perfect 10 bragged about and what Rapidshare claimed, it appears that Perfect 10's "notices" were hardly informative. It also seems to have gone out of its way to make it difficult for Google to quickly respond -- including sending the notices to the wrong email address. As EFF notes:
For example, many of its "notices" consisted of a cover letter, a spreadsheet with URLs (many of which linked only to a top-level URL for a website, as opposed to a specific infringing URL) and a hard drive or DVD containing Perfect 10's electronic files of its photos. Not good enough, said the court -- the information required by the DMCA must be contained in a single written communication; forcing a service provider to cobble together adequate notice from a variety of sources is just too burdensome.While this is entertaining in that it's the latest in a long line of legal smackdowns against Perfect 10 and its questionable litigation strategy, this ruling could be important in a variety of other cases as well. One of the key issues being fought about in a series of cases is what constitutes "knowledge" for a service provider, requiring it to take action under the DMCA. In both the Veoh/Universal Music case and the YouTube/Viacom case, judges found that the knowledge had to come from specific DMCA takedown notices, that indicated where the specific infringing works were. However, in the IsoHunt case, a judge went in a different direction, claiming that "red flag" knowledge was enough. That is, if there was enough information out there to raise a "red flag," then the service provider needed to take action.
Now, we've long argued that such "red flag" knowledge is somewhat meaningless. If I know that lots of people are using a tool for infringement, but don't know which specific works are infringing, how can I be expected to do anything specific? Since there's no way for the service provider to pinpoint which works are infringing -- even if they know that many works likely are infringing -- then how can the service providers act in a way that doesn't create massive collateral damage for legitimate communication?
But this ruling, again, effectively is a vote against the concept of "red flag knowledge," since you could make the argument (and, Perfect 10 did) that even in the absence of a complying DMCA takedown notice, sending over its mess of information could constitute a red flag. But, as the judge properly notes, that makes little sense. The ruling goes through the ridiculous hoops that Google would need to jump through in order to find and take down specific works, and notes that the DMCA clearly did not intend for that to happen.
Of course, this isn't the first time that Perfect 10 has lost on this exact argument. The CCbill case involved more or less the same questions about "red flag" knowledge, and Perfect 10 lost there. This ruling relies heavily on that one. But, we seem to keep racking up rulings that say that any "red flag" knowledge still requires specific notification of what is infringing -- with the IsoHunt ruling being the one exception. It makes you wonder if the IsoHunt ruling is on a collision course with all of these others.
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Filed Under: dmca, red flags
Companies: google, perfect 10
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They also thought that Swedish law did not have 3rd party liability and similar, but apparantly are wrong on that one.
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Yeah I know, personally I would probably do the same if an EU court came after me with a site hosted in the US.
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An RIAA's lawyers thoughts on 'red flag knowledge'
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202463839409&iViacom_v_YouTubei_a_miss ed_opportunity&slreturn=1&hbxlogin=1
Basically, this attorney believes that the courts are ruling against Congress' intentions and disregarding the entire purpose of the 'red flag' provisions of the DMCA.
Not that I agree, but I thought it provided a better counterpoint than Perfect 10's admittedly deficient filings.
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Re: An RIAA's lawyers thoughts on 'red flag knowledge'
§ 512(c)(1)(A), does not require awareness of specific infringing video clips. This provision merely requires awareness of "facts or circumstances from which infringing activity is apparent" ... this is refered to as "red flag" knowledge.
The key word in that statement is the word "APPARENT"
Viacom authorized the upload of its content and hid the fact by using outside IP addresses. Hiding officially released Viacom Video amoung infringing material. This takes every Viacom video on YouTube out of the red flag provision because they were purposely obfuscating (confusing) which were official and which were not.
Scott A. Zebraks statement
"By finding that red-flag knowledge requires proof equivalent to that of actual knowledge, the court rendered the red-flag provision meaningless and duplicative of the actual knowledge provision, a result Congress obviously could not have intended."
doesn't hold up, it was Viacoms act of uploading content and hiding the fact that renders the redflag provisions meaningless.
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Re: Re: An RIAA's lawyers thoughts on 'red flag knowledge'
"...renders the redflag provisions meaningless." The actions of Viacom made it so that "actual knowledge" of what was infringing material was required.
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Re: An RIAA's lawyers thoughts on 'red flag knowledge'
I'm sure it's not a surprise to many, but I agree with the points being made in that opinion piece. I look forward to the appeals of the Viacom v. YouTube case. I think the district court judge botched it up, and I await the spanking that I think is coming from the appellate courts.
Like it or not, "red flag" knowledge is part of the DMCA.
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Maybe i just want to see what the movie industry is submitting to bit torrent.
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Does perfect 10 go after these sites which actually host the pics?
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Browse through the take downs at http://www.chillingeffects.org
tons and tons of request to pull links found in search results.
Question: Why does a search engine get DMCA takedown notices for materials in its search listings?
Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.
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A search engine cannot pull down content, of course, but they can "refuse" to list the result in their search returns. I gather this is what is being requested. This would effectively "take down" the content since nobody can basically guess at a random URL to view the disputed content.
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This all makes pefect sense in Bizarro World.
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2) Index Lots And Lots of Pr0n!
3) ???
4) Win!?
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What's so hard?
There's an expense involved in that, tis true, but if the sale of Bugs Bunny cartoons don't generate enough revenue to pay a flunky in Pakistan to search on Google for unauthorized copies, one wonders why the copyright is worth enforcing at all.
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Irony abounds...
It's not just a matter of finding a link via Google. It often requires drilling down through various pages and posts (and ads (thanks Google AdSense for that) before one can actually find the infringing material (stream and/or link(s)).
While we are on the subject of Google, let's ask them just what % of their AdSense revenue comes from (and is fed back to) the pirate websites. Google ads are everywhere on pages featuring pirated content. Out of 2.6 billion in AdSense profits last quarter alone, I imagine it's a fair amount of change. Google earns a pretty penny from piracy...not that they'll admit it any time soon.
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Re: Irony abounds...
Hint #2: I bet a lot of computer manufacturers earn a large percentage of revenue from people using computers for criminal activity! Quick, sue! We must protect ourselves from...you know...the internet! Or something. After all, flailing around in self-pitying panic is much easier than actually improving your business, right?
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Re: Fake Files Submitted by Movie Industry...
I think downloading a fake movie could be construed as an attempt to commit a crime - which ... is a crime, no? But, I see a whole other, perhaps damaging (to the industry) issue. If the movie company uploads a fake file with the name of a real movie, can we, the downloaders, then assume we have permission to download the actual movie named?? I think it would!
I mean, we download the fake, submitted by legit movie company (or agent(s))....we try to view it, and see it is "corrupt" - so download a different copy. Seems perfectly legal to me. Basically, by posting the fake, they hand us permission to download the real as the fake can be seen as simply corrupted data. Or, even if the movie downloaded is viewable, but different than what the torrent says, whatever the movie, the incorrect movie was legitimately uploaded - making that movie free for the taking.
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Bullshit.
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