Section 512 of the Digital Millennium Copyright Act (“DMCA”) offers various “safe harbors” to online service providers (“OSPs”) for claims of copyright infringement against them arising from certain acts of their subscribers and account holders. Section 512 provides that in order for an OSP to qualify for the DMCA’s protections, it must satisfy certain requirements. One threshold requirement is that an OSP must have a policy that, under appropriate circumstances, provides for the termination of subscribers and account holders who are “repeat infringers.”
Until recently, case law construing the repeat infringer policy requirement Section 512’s has interpreted the statute to give OSPs wide latitude in adopting and implementing such policies. However, in a recent opinion, Flava Works, Inc. v. Gunter, a federal district court in Illinois held that an OSP’s repeat infringer policy was likely insufficient to afford such the protection of the DMCA’s safe harbors because its policy did not consider repeated copyright infringement to be a sufficient basis for termination.
Section 512’s statutory requirement for a repeat infringer policy has four parts: (1) the OSP must adopt a termination policy; (2) the adopted policy must provide for termination in appropriate circumstances of subscribers and account holders of the OSP’s system or network who are “repeat infringers”; (3) the OSP must inform its subscribers and account holders about the termination policy; and (4) the OSP must “reasonably implement” the policy.
In Flava Works, the court issued a preliminary injunction against the defendants, Marques Rondale Gunter (“Gunter”) and his website, myVidster.com. myVidster.com allows users to “bookmark” or “post” video files, thereby embedding the video files from other websites on to myVidster.com. While some of the videos offered on myVidster.com are hosted on its servers, the vast majority are hosted on the servers of third-party websites. Importantly, regardless of where a video is hosted, when it is embedded on myVidster.com, it is not simply linked-to from the site; rather, when users play an embedded video, they remain on myVidster.com while viewing it.
Flava Works, Inc. (“Flava Works”), a producer and distributor of adult entertainment products and the plaintiff in the case, repeatedly asked defendant Gunter to remove its copyrighted content from myVidster.com. The evidence indicated that Gunter would only sometimes comply with these requests to remove Flava Works’ content and, further, did not terminate any users’ accounts for repeated postings of Flava Works’ content.
In issuing a preliminary injunction against the defendants, the court held that Gunter and myVidster.com were unlikely to succeed in their argument that they were protected by one of the four safe harbor provisions of Section 512. In rejecting their argument, the court did not examine every requirement that a defendant must satisfy in order to receive the protection of Section 512’s safe harbors. Rather, the court focused on Section 512’s repeat infringer policy requirement. Gunter, in explaining the repeat infringer policy of myVidster.com, stated that he believed the term “infringer” only included those users who posted videos from password protected or private websites. He stated, in other words, that an infringer under his policy is not one who posts copyrighted works without authorization, but rather, one who posts videos that are not otherwise available on public websites.
In finding that Gunter and myVidster.com’s repeat infringer policy was insufficient to satisfy the requirements of Section 512, the court noted that “[Gunter’s] understanding of the term ‘infringer’ does not encompass the law of copyright.” Indeed, because myVidster.com’s repeat infringer policy did not actually provide for the termination of repeat copyright infringers, the court held that Gunter and myVidster.com were not eligible for the safe harbor provisions of Section 512.
While Flava Works does not offer much guidance as to what an adequate repeat infringer policy might look like, it does offer insight into at least a necessary requirement for such a policy. In particular, the case makes clear that a repeat infringer policy must provide for termination of users for repeatedly violating copyright law; a personal determination of what an individual believes to be proper or improper usage is insufficient to satisfy the requirements of Section 512. If nothing else, Flava Works serves as a reminder to companies operating blogs and websites to confirm that they have adopted and implemented a policy for terminating users engaged in repeated copyright infringement.
Even though Flava Works does not explore other qualities that a repeat infringer policy should possess to satisfy DMCA requirements, previous cases have offered guidance on this issue. In Perfect 10, Inc. v. Cybernet Ventures, Inc., the court stated that, at minimum, an OSP should terminate users when “given sufficient evidence to create actual knowledge of blatant, repeat infringement from particular users.”
Moreover, the court in Perfect 10, Inc. v. CCBill, LLC stated that a policy would be considered reasonably implemented “if it has a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications.” The court went on to note that implementation is reasonable “if, under ‘appropriate circumstances,’ the service provider terminates users who repeatedly or blatantly infringe copyright.”
In an attempt to standardize the repeat infringer policies across Internet service providers (“ISPs”), various large ISPs as well as representatives from the film, music and television industries recently teamed up to create a model repeat infringer policy. The policy, which will be administered by the newly created Center for Copyright Information (a partnership of the groups that produced the model policy), creates a “six strikes and you’re out” rule for copyright violations, with each strike having escalating consequences for the user. While this standardized policy is by no means binding on ISPs, it has received support from the White House.