Hyperlocals Need to Pay Attention to ‘Red Flags’ in User Content

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Hyperlocal publishers can’t afford to turn a blind eye to clues or hints that there are copyright problems with content generated by a user. Content uploaded to a hyperlocal site may infringe the copyrights of another. Copyright law offers some immunity to hyperlocals for content uploaded by the user as long as the publisher had no knowledge — or became aware — that the content my violate the rights of others. What type of “red flags” create risks for the publisher recently was addressed in a hotly contested lawsuit filed by Viacom against YouTube; the lawsuit’s outcome will affect how hyperlocals must deal with user content.

Viacom International, Inc. sued YouTube and its parent Google, Inc. for copyright infringement claiming that YouTube allowed users to post about 79,000 clips of videos owned by Viacom. YouTube replied it had immunity under copyright law, because it did not have specific knowledge that users were uploading infringing content, and that it removed the content as soon as Viacom complained.

A federal court sided with YouTube and dismissed Viacom’s lawsuit. But on April 5, 2012, the Federal Court of Appeals in New York overturned the decision and sent the case back to trial, indicating that a jury may have to decide if YouTube failed to act on some “red flags” that certain content uploaded by users violated the copyrights of others.

The case hinges on the Digital Millennium Copyright Act, the same law that can give hyperlocal publishers and sites some immunity for content uploaded by their users, such as comments, pictures or videos. Before Congress enacted the DMCA, Web sites potentially faced copyright liability for republishing infringing material uploaded by a user. The DMCA gives hyperlocals and other Web sites certain immunity against a copyright claim for user generated content subject to the following requirements:

The content is uploaded at the direction of the user;

  • The site is a provider of online service or network access (most web sites fit the bill);
  • The publisher does not have actual knowledge or is not aware of facts and circumstances (the “red flag” rule) that the material is infringing;
  • It does not get a direct financial benefit from the infringing activity where the service provider has the right or ability to control the activity; and
  • The publisher has a process to act on infringement complaints and quickly removes or disables the content subject to the complaint.

YouTube claimed it had DMCA immunity because it did not have actual knowledge that users uploaded infringing content, and that YouTube took down the clips when Viacom complained. But Viacom alleged YouTube did not go far enough; it was aware of circumstances that it had infringing content and failed to resolve the problem. The appellate court agreed with Viacom, finding that a jury will have to decide if YouTube ignored some “red flags” about content on its site. The court stressed the following facts  raised during the appeal:

An internal survey at Google estimated that 75% to 80% of all YouTube streams contained copyrighted material.

  • 60% of the videos were premium material; only 10% of such premium content was authorized for use on YouTube.
  • Google ordered the removal of video of certain soccer leagues in advance of meetings with heads of “several major sports teams and leagues,” realizing that the content could hurt Google’s ability to strike a deal to license video content from these leagues.
  • A Google report showed the episodes from shows such as Family Guy, South Park (a Viacom property) and other shows could be found on YouTube.

The court  observed “a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent.” The court added that the DMCA does not require a Web site to monitor for infringement, but the site cannot be “willfully blind” if it becomes aware of circumstances in which infringing activity takes place.

 DCMA immunity is one of a hyperlocal’s core protection against copyright liability for the content uploaded by its users. The key is that hyperlocals meet the standards described in this article, and promptly act on infringing content once a hyperlocal becomes aware of a problem or receives a complaint from the copyright owner. But wait, there’s more. There are some logistics that hyperlocals must implement to benefit from the DMCA. The DMCA requires that sites implement a “notice and take down” process, which requires the following steps:

Hyperlocals must provide an area on their sites where a copyright owner can submit a complaint about infringement;

  • The complaint page should enable a copyright owner to provide specific details required under the DMCA, including, identifying the owner of the copyright, and providing a detailed description of the nature and location of the material. A good example of a complaint page is the “Reporting Claims of Copyright Infringement” used by AOL.com.
  • Publishers must specify ways a copyright owner can summit the detailed complaint, such as by mail or email.
  • Each Publisher must designate with the U.S. Copyright office an agent appointed by the hyperlocal to receive notices of copyright complaints. The form and procedure to designate an agent can be found here.

This immunity applies only to content uploaded by users. It does not apply to content created by the publisher, its reporters, or freelancers specifically commissioned to provide content. The DMCA does note require a hyperlocal publisher to monitor all user content, but a publisher cannot turn a blind eye once it becomes aware that some user content is infringing.

This article is provided for information purposes only and it is not intended to provide specific legal advice.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.

Image courtesy of Flickr user DBduo Photography.

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