Perfect 10 Loses Again, As Court Says DMCA Notices Need To Be Properly Filed

from the red-flags? dept

Just last week we were talking about Perfect 10's lawsuit against Google in Canada, where we noted that in Perfect 10's own bragging press release, it effectively admits that its takedown filings were not properly filed. They admit that they just sent images to Google saying that it owned the images, without telling Google where they were actually located to take down. This was the same charge that Rapidshare recently made against Perfect 10, noting that the company seemed to purposely not want companies to take down their images, so that it could sue.

Thankfully, in the US version of the lawsuit (in which Perfect 10 seems to lose over and over and over again), the judge noted this failure by Perfect 10 to properly file DMCA takedown notices and dismissed large parts of the lawsuit. Similar to what Perfect 10 bragged about and what Rapidshare claimed, it appears that Perfect 10's "notices" were hardly informative. It also seems to have gone out of its way to make it difficult for Google to quickly respond -- including sending the notices to the wrong email address. As EFF notes:
For example, many of its "notices" consisted of a cover letter, a spreadsheet with URLs (many of which linked only to a top-level URL for a website, as opposed to a specific infringing URL) and a hard drive or DVD containing Perfect 10's electronic files of its photos. Not good enough, said the court -- the information required by the DMCA must be contained in a single written communication; forcing a service provider to cobble together adequate notice from a variety of sources is just too burdensome.
While this is entertaining in that it's the latest in a long line of legal smackdowns against Perfect 10 and its questionable litigation strategy, this ruling could be important in a variety of other cases as well. One of the key issues being fought about in a series of cases is what constitutes "knowledge" for a service provider, requiring it to take action under the DMCA. In both the Veoh/Universal Music case and the YouTube/Viacom case, judges found that the knowledge had to come from specific DMCA takedown notices, that indicated where the specific infringing works were. However, in the IsoHunt case, a judge went in a different direction, claiming that "red flag" knowledge was enough. That is, if there was enough information out there to raise a "red flag," then the service provider needed to take action.

Now, we've long argued that such "red flag" knowledge is somewhat meaningless. If I know that lots of people are using a tool for infringement, but don't know which specific works are infringing, how can I be expected to do anything specific? Since there's no way for the service provider to pinpoint which works are infringing -- even if they know that many works likely are infringing -- then how can the service providers act in a way that doesn't create massive collateral damage for legitimate communication?

But this ruling, again, effectively is a vote against the concept of "red flag knowledge," since you could make the argument (and, Perfect 10 did) that even in the absence of a complying DMCA takedown notice, sending over its mess of information could constitute a red flag. But, as the judge properly notes, that makes little sense. The ruling goes through the ridiculous hoops that Google would need to jump through in order to find and take down specific works, and notes that the DMCA clearly did not intend for that to happen.

Of course, this isn't the first time that Perfect 10 has lost on this exact argument. The CCbill case involved more or less the same questions about "red flag" knowledge, and Perfect 10 lost there. This ruling relies heavily on that one. But, we seem to keep racking up rulings that say that any "red flag" knowledge still requires specific notification of what is infringing -- with the IsoHunt ruling being the one exception. It makes you wonder if the IsoHunt ruling is on a collision course with all of these others.
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Filed Under: dmca, red flags
Companies: google, perfect 10

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  1. icon
    Hephaestus (profile), 29 Jul 2010 @ 8:52am

    Re: An RIAA's lawyers thoughts on 'red flag knowledge'

    "Basically, this attorney believes that the courts are ruling against Congress' intentions and disregarding the entire purpose of the 'red flag' provisions of the DMCA."

    § 512(c)(1)(A), does not require awareness of specific infringing video clips. This provision merely requires awareness of "facts or circumstances from which infringing activity is apparent" ... this is refered to as "red flag" knowledge.

    The key word in that statement is the word "APPARENT"

    Viacom authorized the upload of its content and hid the fact by using outside IP addresses. Hiding officially released Viacom Video amoung infringing material. This takes every Viacom video on YouTube out of the red flag provision because they were purposely obfuscating (confusing) which were official and which were not.

    Scott A. Zebraks statement

    "By finding that red-flag knowledge requires proof equivalent to that of actual knowledge, the court rendered the red-flag provision meaningless and duplicative of the actual knowledge provision, a result Congress obviously could not have intended."

    doesn't hold up, it was Viacoms act of uploading content and hiding the fact that renders the redflag provisions meaningless.

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