Economic and Human Rights Benefits of Safe

Harbors for Online Service Providers

Associate Prof. Hannibal Travis,FIU College of Law, Dec. 2011

Safe Harbor

“Safe Harbor” for OSPs (online service providers)–Who transmit, route, connect, host, store,

index, or link to information (a)-(c)–Who establish copyright compliance

procedures (i)–Who do not post or control posting of the

information (a)

DMCA

Other requirements under 512?–OSP does not directly benefit from

infringement they control (c)–OSP removes infringing material upon

obtaining notice (c) No actual/constructive knowledge of

infringement (c)–OSP terminates repeat infringers (i)–OSP may be ordered cut off a site (j)

DMCA

Notifications and counternotifications– OSP must have designated copyright agent.– Copyright owner or agent must notify OSP.

Good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

Information is accurate, and under penalty of perjury, authorization to represent copyright owner.

DMCA

DMCA Notifications

DMCA Notifications

DMCA Suspensions

Viacom v. YouTube (2010)

DMCA 512(c) applied. – Did YouTube go beyond “storage”?

No – despite display No – despite copying / distribution

– Is “general awareness that there are infringements” enough to defeat 512(c)? No – specific red flags needed (URLs)

– DMCA promotes the efficiency of Internet – Cost of DMCA not too high for purpose.

Viacom v. YouTube (2010)

Economics

Economics

CCIA Report for 2011–Internet search and Web hosting

providers depend on Fair Use and safe harbors

–U.S. exports from fair use industries increase by $20 billion per year

–Total of $294 billion in such exports in 2008

Economics

Chicago School Analysis–Overenforcement of copyright law

may prevent derivative works–Administrative costs may exceed

effects on incentives to invest–Copyright industries may divert

capital and talent from other sectors if overcompensated relative to them 11% of U.K. pre-teens want to be pop stars, 11% actors, 12% pro athletes

Economics

IP Remedies vs. Online Speech–Injunctive relief

Seizure or impoundment of Web sites–Damages

Actual damages Defendant’s profits Statutory damages – cases of little harm

–Attorneys’ fees and costs Far beyond avg. citizen’s ability to pay

Human Rights

Access to Knowledge

Settlement in Shadow of Fair Use– $45 million for authors and publishers whose

books were scanned before May 5, 2009– $80 million for Book Rights Registry, notice to

publishers and authors, admin., and legal fees.– If out-of-print, allowed online if no opt-out– If in-print, not allowed if no opt in – Book Rights Registry – board with

representatives from authors and publishers to compile rights information, and license Google’s uses pursuant to framework above

McGraw-Hill v. Google (2005)

Sheldon v. Metro-Goldwyn (U.S. 1940)

A&M Records v. Napster (9th Cir. 2001)

Research in Motion (2005) MercExchange v. eBay (2006) Perfect 10 v. Google (9th Cir. 2007) Sony BMG v. Tenenbaum (D. Mass.

2010) ($650,000)

Human Rights and IP Remedies

http://works.bepress.com/travis

For Further Reading