There's an important copyright case being heard at the 7th Circuit Court of Appeals concerning DMCA and repeat infringers. Simply put, if a site owner responds to DMCA complaints and removes infringing content but does not ban the users who uploaded the content in question, is the site owner in someway liable if these users become repeat infringers?
Google and Facebook don't think so, but the MPAA, surprisingly, does.
What we have is the appeal for Flava Works, Inc v. Gunter. The site in question is myVidster, owned by Marques Gunter. myVidster was, according to TorrentFreak, designed "to upload links and embed videos hosted at 3rd party sites." Flava Works, which serves as producer and distributor of adult content, filed suit against Gunter for "failing to police his site." Apparently, Flava Works' gripe is not with Gunter's responses to DMCA takedown requests. The company's lawyers attest to the fact that Gunter did indeed remove content when called upon to do so. The problem, to Flava Works, is that Gunter did nothing to address the repeat infringers who uploaded the infringing content to his myVidster service.
Judge John F. Grady, keeping the trend of siding with the complainants in regards to copyright infringement, agreed, upholding the claim of infringement while issuing an injunction against the site. Grady punctuated his ruling by saying Gunter should've done more:
"[Gunter] removes videos from myVidster that are listed in DMCA notices, but goes no further. Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection..."
Grady even went as far to say that service providers are not required to monitor their sites for infringing uploads, but the statement was finished of with a "still, he should've done it anyway" conclusion. Saying the judge's ruling went way beyond the scope of DMCA, the EFF filed a dissenting amicus, indicating DMCA says nothing about site owners and their responsibility regarding repeat infringers.
In fact, DMCA does not even define what a repeat infringer is, but yet, that didn't stop the presiding judge to rule against the site owner. Google and Facebook championed Gunter's cause, agreeing the ruling puts too much of a burden on site owners:
"...imposing greater liability on Internet intermediaries for the actions of their users would have a devastating effect on investment in early-stage Internet companies."
From here, the MPAA joined the fray, and as one might expect, they want Gunter punished, even if that means going beyond the scope of the DMCA rules:
"Contrary to the assertions of myVidster and amici Google and Facebook, search engines and social networking sites are not the only businesses that desire certainty in a challenging online marketplace. MPAA member companies and other producers of creative works also need a predictable legal landscape in which to operate. By advertising infringing material, refusing to terminate any of its users’ accounts, and failing to identify and stop infringers who repeatedly embedded links to unauthorized video streams and displays, myVidster did not qualify for safe-harbor protection. Given the massive and often anonymous infringement on the internet, the ability of copyright holders to hold gateways like myVidster liable for secondary infringement is crucial in preventing piracy."
Too bad the DMCA includes absolutely none of what the MPAA wants. What's worse, however, is the fact that even though the DMCA doesn't include such stipulations, the judge ruled against the defendant as if he was sending a message that repeat infringement will not be tolerated, even if the law indicates you are not required to monitor the sites you own for infringing content.
In an effort to protect the overreaching claims of Flava Works, Judge Grady overstepped his boundaries, something the MPAA was all too eager to support.[Via Torrent Freak] [Lead image courtesy of xkcd]