The Ninth giveth, and the Ninth taketh away. Seven days after releasing the Veoh decision, which buttressed the DMCA Safe Harbor protections by extending protection to providers that know that they host copyrightable material and that their services could be used for infringement, the same three judges trimmed away DMCA protections in the isoHunt case.
In both Veoh and isoHunt, a company made money off of advertising on a site full of user-submitted content, much of which infringed upon others’ copyrights.
The distinction seems to be in the company’s role. While Veoh seemed to take a willfully ignorant stance, isoHunt’s founder actually participated on his own site, encouraging users to upload infringing content. That difference apparently places him outside of the following safe harbors:
§ 512(a) Transitory digital network communications
Service providers aren’t liable for users infringement if they are a neutral conduit for user-initiated connections. Connections should be done via automated technical processes and data should be stored only temporarily and transmitted unmodified.
This is the search engine or content curation exception. On its face it seems to apply, but its exceptions for “red flag” knowledge of infringing content, control over content, and financial benefits all mirror those of § 512(c). Based on the above facts, Fung and isoHunt aren’t protected.
Related Resources:
- Columbia Pictures v. Gary Fung, isoHunt (Ninth Circuit Court of Appeals)
- Lawsuits Make Strange Bedfellows: MPAA, Porn, and Infringement (FindLaw’s Seventh Circuit Blog)
- Ninth Cir to Reconsider Veoh Based on Viacom-YouTube Litigation? (FindLaw’s Ninth Circuit Blog)
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