The United States district court for the southern district of Florida has issued a decision involving internet service provider’s immunity under the DMCA, or digital millennium copyright act. The law suit is based upon five major motion picture studios suing the website known as "hot file". Hot file provides on-line file storage, in the plaints’ claim that hot file restoring and sharing works that infringe the copyright of the plaints’. Plaints’ theory is that hot file should be liable for copyright infringement because it contributes to, encourages, or benefits from the copyright infringement by making available storage for and links to the allegedly infringing works for its users.
The court analyzed the DMCA safe harbor, which hot file asserted provided immunity copyright infringement as an internet service provider based upon the action of its users. Recall that the DMCA safe harbor requires that a service provider adopt and implement a policy that provides for removal of infringing works upon notice. The question for this courts surrounded whether or not the policy needed to include a process for termination of such users in the event they were repeat offenders of copyright infringement.
Court found that hot file did not have a policy for addressing repeat and void infringers of third party copyrights. It found that hot file had failed to act upon DMCA notices and did not properly terminate such repeat infringers. In addition, the court found that hot file had failed t designate an agent a copyright agent to receive infringement notice infringement notices, and also failed to
register that agent with US copyright office, as it required under the DMCA. Finally, the court noted that well a service provider does not have the duty to affirmatively monitor for infringement; willful blindness is a form of knowledge and the apparent red flag now adjourned infringement in this case was worth considering.
Having found that hot file was not entitled to the DMCA safe harbor, the court next had to determine whether or not secondary liability for copyright infringement existed. Court looked at contributory infringement first and identified the question of material fact for the jury to decide. As for vicarious liability, the court found that hot file is vicariously liable for copyright infringement since it profits from the direct infringement law declining to exercise the right to stop preempted.
This decision is important to any internet service provider, especially those that allow for third party content in any form. The DMCA is a powerful defense for any ISP, but it must be used properly. Copyright policy should be drafted, a copyright agent should be registered with the US copyright office, and business processes should be implemented in order to insure that DMCA take down requests a process, repeat infringers are terminated, and documentation on the same is kept. Failure to do so can result in losing the ability to claim DMCA safe harbor,but more importantly can result in liability for copyright infringement, whether contributory or vicarious liability. A copyright attorney familiar with online issues can assist internet service providers with the DMCA and compliance with the same.