Hours. Days. Weeks. Months. When it comes to acting on copyright infringement takedown notices, just how fast is fast enough for social media platforms? Some recent (and not-so-recent) cases reveal how difficult the question has proven for the courts.
The first two weeks of the year saw two similar actions brought by copyright holders against social media companies. First was a complaint filed by Kristen Pierson. Last we heard from her, she was suing Twitter for copyright infringement for allowing users to reproduce and display her photographs of rock musician Herman Li without a license. Pierson voluntarily dismissed that case on October 8, 2015, less than three months after she filed the complaint. One can suspect that the parties reached a settlement, which may have encouraged Pierson to sue for copyright infringement again, this time against Tumblr in Pierson v. Tumblr. In her complaint against Tumblr, Pierson alleges copyright infringement of her group registration in numerous photographs of musicians and artists. An exhibit to the complaint provides her takedown notice in accordance with 17 USC Section 512(c). Pierson sent the notice via email to Tumblr on November 3, 2015. As of the filing on January 4, 2016, the complaint alleges that Tumblr “failed to disable access to or remove the Infringing Uses.”
Pierson’s attorneys also filed a complaint on behalf of another photographer for copyright infringement on January 11, 2016, against Twitter in Reilly v. Twitter. In that case, facts allege that plaintiff Reilly sent numerous takedown notices via email to Twitter on November 28, 2015.
These cases, all complaining that the defendant social media platforms failed to remove offending infringing material from their sites quickly enough, call for a deeper analysis of the requirements of responding to a Section 512(c) takedown notice. Section 512 of the DMCA, as provided by OCILLA, provides as follows (emphasis ours):
In general. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider:
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
This section essentially provides a “safe harbor” incentive for service providers to remove or disable access to infringing works expeditiously. Noticeably absent, however, is a definition of “expeditiously.”
Note, courts have tried to interpret this term and provide a temporal definition. In Perfect 10, Inc. v. Google, Inc., the Court indicated that an alleged turnaround time of seven months was too long. In Io Group, Inc. v. Veoh Networks, Inc., the Court indicated a week was not expeditious enough—finding that evidence indicating the defendant acted within seven days to respond to notification and remove content did not give rise to a genuine issue of material act that it failed to act expeditiously. In Capitol Records, LLC v. VIMEO, LLC the court stated that a one-day response time to a notification of infringement was sufficiently expeditious. However, regarding a particular instance where a notification identified 170 videos, the court found that taking three-and-a-half weeks to remove the infringing content was expeditious. More recently, in Square Ring v. UStream, the parties presented the issue of whether 48 hours could be considered expeditious. In that case, Square Ring claimed to have sent three DMCA takedown notices. UStream responded two days later informing Square Ring that the identified links had been taken down. In opposition to UStream’s motion for summary judgment, Square Ring argued that two days was not expeditious and that UStream thus could not seek the protections of the DMCA safe harbor. (The Court ultimately denied the motion, as there were genuine disputes of material fact.) As to the “expeditious” issue, the Court stated that it “is not prepared to make a factual determination as to whether UStream acted expeditiously as required by the safe harbor provision. A number of questions of fact exist as to what precisely was done during the time period in which UStream received the March 17, 2009 notices and the ultimate takedown on March 23, 2009, a full forty-eight hours after the DMCA-compliant notices were received.” Unfortunately, whether 48 hours constitutes an expeditious response was never decided as the case settled before trial.
Many of these cases also discussed the technological issues involved with taking down the particular content, which appear to have impacted each court’s analysis into what can be reasonably expected as expeditious. For now, the relevant cases suggest that while responding within days or even weeks may be expeditious, taking months to respond is not. One thing is certain, as long as the exact meaning of “expeditious” remains unsettled, plaintiffs—and often the same ones—will continue to file cases.