Digital Millennium Copyright Act: Why a Compliant Take-Down Notice Can Be Important in a Successful Copyright Infringement Claim against an Internet Service Provider

14 Oct 2015 By Leave a Comment

The Digital Millennium Copyright Act provides several safe harbors for internet service providers and web hosting services against copyright claims. For interactive digital media companies, one of the most useful is provided in 17 U.S.C. § 512(c) – for “information residing on systems or networks at direction of users.” If you operate a qualifying internet service and fulfill the requirements enumerated in the statute, you are immune from liability if a user has posted copyrighted information that can be accessed by other users on your site.
There are three requirements to qualify for this safe harbor:

(1) the service provider cannot have actual or constructive knowledge that infringing activity is taking place on its system, OR it must “act expeditiously” to remove infringing material upon obtain knowledge of its existence;
(2) if it has the right and ability to control the infringing activity, it cannot receive a direct financial benefit from it,
AND
(3) if it receives a DMCA “takedown notice,” it must expeditiously to disable or remove the infringing material. (Fn1)
The interesting thing about these requirements is that they are conjunctive. In other words, if an internet service provider fails to meet any one of them, it doesn’t qualify for the safe harbor. Many people have heard about “DMCA takedown notices” and assume that a plaintiff has to serve a DMCA notice in order to bring a copyright suit against an internet service provider. Not necessarily so. If there is solid evidence that the service provider has actual or constructive knowledge of infringing activity, then a copyright holder can sue without ever sending a DMCA notice. There are a number of recent cases against digital media companies where plaintiffs have brought suit without first sending a DMCA notice.
So why bother sending a DMCA notice at all? The problem is one of proof. Without sending a compliant DMCA notice, it is often very difficult to prove that the service provider had actual or constructive knowledge of the infringing activity.

Filed Under: Blog, Cybercrime, News Tagged With: , ,

Share With Litigants: Court Orders Social Network Posts Disclosed

8 Aug 2015 By Leave a Comment

A personal injury case in Suffolk County recently became New York’s testing ground for the disclosure of information posted on Facebook and MySpace.  In Romano v. Steelcase Inc. , the defendant demanded access to the private portions of the plaintiff’s social networking sites, including deleted information.  The defendant contended the information would refute plaintiff’s claims about the extent of her injuries.  The plaintiff opposed the defendant’s request on the ground the disclosure would violate her right to privacy.

Justice Jeffrey Arlen Spinner agreed with the defendant and granted the discovery motion.  Finding no New York precedent on this issue, the court cited case law from Colorado and Canada to support its decision.  In rejecting the plaintiff’s privacy claims, Justice Spinner observed that the very purpose of social networking sites is to share “personal information” with others.  Therefore, since the plaintiff “knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.”

The court based its decision largely on the fact that the plaintiff voluntarily posted the information she was seeking to protect.  As most social networkers know, however, any of your “Friends” can post information about you (or photos of you) on their pages and there’s not much you can do to stop them.  Even if you convince them to remove the information, the history and deleted files are likely to be available.  It will be interesting to see how courts will treat the disclosure of information posted by third-parties and how privacy arguments will fare in those cases.

Romano v. Steelcase serves as yet another cautionary tale about posting information on the Internet.  Even if you delete a compromising photograph or status update, it could be disclosed to your adversary in litigation and used as evidence against you in a lawsuit. While Facebook members and Internet commenters have spent countless hours and immeasurable bandwidth debating Facebook’s privacy settings, in many ways that entire controversy is a red herring.  Nothing you post on a social networking site is truly private

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Mitigating Cyber Risk as Healthcare Data Sharing Accelerates

7 Mar 2015 By Leave a Comment

Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets contain
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