Lawsuit Finally Explores What Counts As A 'User' Under The DMCA

from the this-just-came-up-now? dept

Thu, Apr 2nd 2015 12:43pm — Mike Masnick

You would think, with the DMCA rapidly approaching its 20th anniversary of becoming law, that nearly every idea, word, phrase and concept of the law would have been tested in some court case or another. You'd be wrong. In a new ruling from earlier this week, a district court in Colorado noted that there are no cases that actually examine what is truly meant by the word "user" in the DMCA's safe harbor related to the posting of infringing content. If you're playing along with the home game, we're talking about 512(c), the part of the DMCA that provides safe harbors for service providers that host content. This is the key part of the DMCA safe harbor, and the one that has made it possible for basically all user-generated content platforms to operate. And yet, no one has actually challenged the definition of "user" in the law. The specific part of the law reads as follows:

(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, 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, if the service provider—
(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Seems straightforward enough, right? A service provider is not liable for things done by a user if they meet certain criteria. And nearly all of the lawsuits to date have been about whether or not those criteria apply (or whether a site qualifies as a "service provider"). But what is a "user"?

The case in question involves the content-farm like news site Examiner.com, which famously lets almost anyone pretend to be a reporter and publish articles that look like semi-legit news articles, even if there's basically no vetting at all beyond an initial screening by which the company tries to determine if you can put words together in coherent sentences. Over the years, Examiner.com has been often mocked as a source of absolutely ridiculous articles. But what if an Examiner.com writer infringes on someone's copyright by posting unauthorized photos? That's at the heart of BWP Media v. Clarity Digital Group (owners of Examiner.com).

Examiner argues that it should not be held liable, as the infringing content was posted by a user. BWP Media, which operates as Pacific Coast News, and the National Photo Group argued that because Examiner does at least some vetting of people who can post, provides them some instruction about the types of articles they can post and because it compensates them based on traffic to the articles, the people who post on Examiner.com are not "users" under the DMCA, but are really more like employees of the company, which would make the company itself liable. Thankfully, the court disagrees, and notes that there is nothing in the law that supports that interpretation:

Plaintiffs argue that the term “user” cannot be interpreted in this way because “[o]wners, employees and agents are typically users of their business’ website” and “courts have already found that owners, employees, agents (and even implied agents) are not ‘users’ within the meaning of the DMCA safe harbor provisions.”.... Therefore, plaintiffs claim that “case law dictates that the word ‘user’ is a legal term of art for purposes of applying the safe harbor provisions of the DMCA.” ... There are several problems with this argument. First, plaintiffs assume that the word “user” cannot be given its plain meaning because there is a need to distinguish between storage at the direction of the service provider and storage at the direction of third parties and that such distinction should be made through the interpretation of “user.” However, as other provisions of § 512 demonstrate, Congress knew how to make such a distinction without mentioning “user.” Both §§ 512(a)(1) and 512(b)(1)(A) utilize the phrase “a person other than the service provider” to differentiate between the service provider and other persons. More specifically, § 512(a)(1) uses the phrase “at the direction of a person other than the service provider,” which is analogous to the distinction that plaintiffs urge be made through the definition of “user” in § 512(c)(1). The fact that Congress elsewhere in the statute made the distinction between service providers and third parties with different words cautions against plaintiff’s interpretation.

In other words, if Congress meant that no one who gets money or works closely with an organization could be deemed a "user," it could have and would have said so. Thus, someone that closely tied to a company can still be deemed a user under the DMCA. The court looks deeper at the law and notes that the concerns that the copyright holders raise about what would happen if "user" was defined this way don't really make sense, because actions that deeply involve the company itself are already clearly written out of the DMCA's safe harbors in other sections.

Overall, this is a good ruling. A ruling in the other direction would have raised serious questions about a number of platforms -- especially those that may provide some form of compensation to users. But just because a site provides compensation shouldn't automatically mean that the site loses safe harbor protections. Doing so would create serious concerns about how these platforms could develop, and would greatly limit the ability to allow user generated content platforms to also help people make money or become "professional" content creators. That would be a ridiculous result that would clearly go against the intention of copyright law.

BWP Media v Clarity Digital Order (PDF)BWP Media v Clarity Digital Order (Text)

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Filed Under: 512, 512c, copyright, dmca, examiner.com, infringement, liability, platforms, safe harbors, user
Companies: bwp media, clarity digital group, examiner.com, national photo group, pacific coast news

24 Comments

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Anonymous Coward, 2 Apr 2015 @ 1:03pm

(1)(A)(ii) kicks the props from under pirate sites.
"ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;"

If thousands to millions of "users", whatever those are, know where to get infringed content, it's not credible that those running the site don't.
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Anonymous Coward, 2 Apr 2015 @ 1:19pm

Re: (1)(A)(ii) kicks the props from under pirate sites.
Go and find the hundreds of thousands of infringing files, and create a list of the URL's where they are found. Perhaps then you will understand the asymmetry between millions of users and a few employees of a service provider.
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Anonymous Coward, 2 Apr 2015 @ 1:27pm

Re: (1)(A)(ii) kicks the props from under pirate sites.
I see three problems with your arguments:

1)Anyone on the internet can (and most likely will) accidentally infringe on copyrights. This is not because anyone is trying, copyright merely prohibits a lot of currently normal behavior.

2)This clause is intended to mean something like "if you directly know someone is currently infringing on copyrights", it is not intended to require you to police your entire site at all times.

3)The entire rest of the DMCA can still be used against this site.
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Anonymous Coward, 2 Apr 2015 @ 1:45pm

Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
>>> "1)Anyone on the internet can (and most likely will) accidentally infringe on copyrights. This is not because anyone is trying, copyright merely prohibits a lot of currently normal behavior."

Petabytes are not "accidental".

NO ONE IS TRYING to infringe? Really? You're amazing.
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That One Guy (profile), 2 Apr 2015 @ 1:51pm

Re: (1)(A)(ii) kicks the props from under pirate sites.
Knowing that infringement in general is happening on your site is quite different than knowing about specific instance of infringement.

Sites have no legal obligation to pro-actively hunt down the first, they are only obligated to act with the second.
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Anonymous Coward, 2 Apr 2015 @ 2:13pm

There are also, it would seem, multiple levels of users, as you progress outward from data center to hosting provider to website operator to end user. And the distinctions can get even fuzzier, deppending on how much involvement (or even just knowledge) an upstream party has with a downstream party.

If I were to go to a website, and download a file, not knowing that it is copyright infringing, and not knowing that the site is running Bittorrent in the background (as a Java, Javascript, or Flash component) why is it that I am liable to a higher degree of copyright infringement than if the website was a straight download site, in which case there would be no copyright infringement on my part, even though both the infringing (BT) file transfer and the non-infringing (http) file transfer appear identical to the casual observer?

Personally, I think there should be a huge distinction between a person who rips a file, posts the torrent and acts as the original seeder, and the person who downloads a file off a website while completely unaware that there is any uploading component taking place. But it seems the law does not make any such distinction, as the act of copyright infringement does not even require any intent to infringe copyright or knowledge that it might be occurring.
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TimothyAWiseman (profile), 2 Apr 2015 @ 2:14pm

Re: (1)(A)(ii) kicks the props from under pirate sites.
There is a difference between "actual knowledge", "red flag knowledge" (the term for the part you highlighted) for specific files, and being willfully blind to the details.

I wrote a short paper on the topic here but the very short version is that you have to be aware of those facts or circumstances for specific infringing activity. This is very hard. Simply being aware that infringement is enough will not generally trigger that requirement. (Though this is somewhat debatable. I cite to others who believe it should in that paper.)
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stephen.hutcheson@gmail.com, 2 Apr 2015 @ 2:33pm

>If thousands to millions of "users", whatever those are, know where to get infringed content,

This simply isn't true.
First, those people don't know where to get the content. They look for it on Google.
Second, those people don't know whether it's infringed or not. They're looking for content--perhaps better if it's free, but they generally don't know, because they really really don't care, about whether the content is "infringed".

So the syllogism you'd really have to use is:

If millions of people, by diligent search, can find the particular items of content they want--without ever discovering whether or not that item is infringed--amidst the plethora of content available online, then a tiny group of people can find out whether each item of the plethora of content on their site is infringing or not.

Put that way, it blows absurd fuses across the web.

Here's a more realistic version:

If a mass-market copyrighted-content purveyor can't go to a website and tell which of HIS OWN ITEMS OF CONTENT are infringing and which aren't--so that millions of invalid takedown notices are regularly sent out--how is it that there is anyone in creation who's stupid enough to think the webhost could tell which of SOMEONE ELSE'S items are infringing?

Because -- look how many bogus takedown
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Anonymous Coward, 2 Apr 2015 @ 2:35pm

Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
NO ONE IS TRYING to infringe? Really? You're amazing.

Where did the AC make that claim?
Anybody can infringe by accident is NOT EQUUAl to nobody infringes by intention.
You are distorting other peoples statements to suite your own agenda.
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Ven, 2 Apr 2015 @ 2:42pm

It would seem to me that section (1)(A)(i) already does a good job of setting the rules for the case in this lawsuit. If a user is also a part of the 'service provider' (an owner, or employee) would their infringement using the service qualify as the service provider having "actual knowledge that the material or an activity using the material on the system or network is infringing"?

I would suspect that courts might draw different lines on this issue for owners, normal employees and (as in this case) freelancers.
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Anonymous Coward, 2 Apr 2015 @ 3:54pm

Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
"aware of facts or circumstances" means "in general".
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madasahatter (profile), 2 Apr 2015 @ 4:33pm

Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
The real problem for an ISP or host service is they are not privy to any agreements with the copyright holders and the user/website. The DMCA actually tries to distinguish between the user, who may be infringing, and the service who is ignorant of the precise situation until notified. Common sense says there is a certain amount of infringement (deliberate and accidental) occurring.
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Anonymous Coward, 2 Apr 2015 @ 6:48pm

Re: Re:
out_of_the_blue has no idea what he's talking about.
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Anonymous Coward, 3 Apr 2015 @ 1:32am

I am an employee
Where's my paycheck Mike Masnick?
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Anonymous Coward, 3 Apr 2015 @ 3:33am

Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
There are "petabytes" of open source, creative commons, and free use content available online that can also be downloaded via torrent.

What's your point?

It's like saying because drug cartels smuggle X lbs using Y number of trucks. That EVERY company and operator who moves X lbs or more that year must also be guilty? Even if all that company moved was Red Bull?

STFU and RTFM - stop trying to show off to the other kids by pretending you know how to read.
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Mike Masnick (profile), 3 Apr 2015 @ 5:38am

Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
"aware of facts or circumstances" means "in general".

Not according to multiple court rulings, it does not.
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benefacio, 3 Apr 2015 @ 6:15am

Keep the funnies coming!
"In other words, if Congress meant" ... Nearly fell out of my chair laughing at this one.
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Anonymous Coward, 3 Apr 2015 @ 7:31am

Re: Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
>>> "Not according to multiple court rulings, it does not."

Cite a couple. In any event, this is an evolving area of law.

And you're splitting legalistic hairs again: a jury of citizens would regard those words the obvious way.
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KoD (profile), 3 Apr 2015 @ 7:50am

the National Photo Group argued that because Examiner does at least some vetting of people who can post, provides them some instruction about the types of articles they can post and because it compensates them based on traffic to the articles, the people who post on Examiner.com are not "users" under the DMCA, but are really more like employees of the company...

Does this not basically describe YouTube?
1) Have to sign in with an account to post videos. Some vetting of people who can post, check.
2) Has acceptable use policy illustrating what content is/is not allowed. Provides some instruction about the types of content, check.
3) YouTube allows users to generate revenue from ad views. Compensates them based on traffic to the content, check.

What am I missing?
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Anonymous Coward, 3 Apr 2015 @ 9:33am

Re: Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
but the first post is right that it's not credible
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Anonymous Coward, 3 Apr 2015 @ 5:07pm

Re: Re: Re: Re: Re:
Stop changing your IP address, out_of_the_blue. That's what pirates do.
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nasch (profile), 4 Apr 2015 @ 9:29pm

Re:
liable to a higher degree of copyright infringement than if the website was a straight download site, in which case there would be no copyright infringement on my part, even though both the infringing (BT) file transfer and the non-infringing (http) file transfer appear identical to the casual observer?

Is there some court decision or statute I've never heard of that says doing the same thing via bittorrent and http have a different copyright status? Would love to see a reference.

the person who downloads a file off a website while completely unaware that there is any uploading component taking place.

Of course there was an uploading component (unless you mean something different by that than I think). If the file wasn't uploaded, how did it get there for you to download?
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nasch (profile), 4 Apr 2015 @ 9:31pm

Re:
I don't think requiring users to have accounts counts as vetting. It's also not clear that YT's acceptable use policy is in the same category as Examiner's instructions, but I know almost nothing about Examiner.
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Just Another Anonymous Troll, 6 Apr 2015 @ 6:39am

Re: Re: Re: (1)(A)(ii) kicks the props from under pirate sites.
There's a needle in that haystack, and it's your job to remove needles from haystacks when notified. You know there's a needle in general and I can't be bothered to find the needle for you, happy hunting.
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