Copyright infringement on contents posted by website users

Question

Someone has a website like YouTube, so registered users can post any videos. A user posted a video that is a copyright infringement. Can the copyright owner sue the website owner for this? I have read DMCA Safe Harbor about this:

In order to qualify for safe harbor protection, a service provider who hosts content must: - have no knowledge of, or financial benefit from,

If the website owner gets a subscription fee from users, does Safe Harbor qualify then? How about services like YouTube(they have income from ads from posted videos)?

Answer 1

You're talking about sites like Youtube, so I'll focus on that.

That quote, which you bolded, was over-simplified. The actual law is

17 USC 512 (c) Information Residing on Systems or Networks At Direction of Users.

(1) 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

(A)
-- (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 says and complies with a DMCA takedown notice).

What you're talking about is membership fees (e.g. Youtube Premium)... or general advertisements that would be placed on any video without awareness of it being infringing.

That does not violate Safe Harbor per se. At least not on a legitimate site which is dominated by legitimate content and makes an honest, credible effort to keep it that way.

The important clause in (B) is "In a case..." Under (B), they lack the ability to control each activity (upload or view).

Youtube's inability is due to receiving 500 hours (30,000 minutes) of uploaded video every minute, obviously requiring 30,000++ staff seats working 24x7 to curate. That would amount to about 200,000 staff - all of Google is around 50,000 right now.

Even if a small site were able to moderate all content, they might still have a Safe Harbor defense if they could credibly say that they did not know the material was infringing. If someone created a "Juan Brown" username and uploaded blancolirio's videos from YouTube, they could say "we did not know that was not the real person". But if the video started with an HBO splash screen and tones, then heck no.

But non-moderation is not an airtight defense. When sites are neglectful toward removal, they can soon develop a reputation as a haven for such infringing content - which the sites tend to embrace, since it brings many customers! This was the undoing of several music sharing sites in the 00's, since this awareness of their reputation, plus a lack of diligent removal, failed them on all three arms of 1(A) above.

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Remember that a competently run website that relies on user submissions is well aware of the DMCA and its case law, and has tailored its rules and enforcement to make it easy to defend a copyright claim. For instance, in the case of music, Youtube uses some human intervention but largely automated means to either

• take it down and give the uploader a copyright "strike" leading to a ban (which alienates their biggest contributors, especially when a popular Youtuber like blancolirio winds up with a distant car stereo in background noise, remember the detection is by "bot" and no human ever sanity-checks it).
• de-monetize the suspect video (uploader gets nothing, but, neither does YouTube).
• monetize it, but give the revenue stream to the rights holder due to an agreement with them.

The last one is Youtube's preference with regards to music. As this was vastly easier, more practical and better for the community all-around, allowing whole classes of content to be created that would be prima-facie illegal otherwise. And it's content people are already creating and Youtube can't stop them, so it solves a big policing problem too.

Answer 2

A per-user subscription fee alone would be unlikely to cause safe harbor status to be lost. However, if much of the provider's business is in fact due to infringing content, such that vigorously acting to remove infringing content would significantly harm the provider's income, that might well cause the loss of safe harbor status. Much the same is true of advertising income: ads in general do not forfeit safe-harbor, but ads on a site largely taken up with infringing content quite probably will.

A per-post fee paid by users, such that every post increases the provider';s income, particularly if combined with a lack of any attempt at enforcing copyright, may cause the loss of safe harbor status.

If it can be shown that the provider has failed to implement a policy of barring repeat infringers, that will cause the loss of safe harbor status.

If it can be shown that the provider had actual knowledge that a post was infringing, or knew facts which make it quite likely that a post was infringing, this will cause the loss of safe harbor status in regard to that post. This is much less likely to apply if all processing of posts is automated, and the provider has no specific knowledge of any particular post.

If the provider does not have a designated copyright agent, or does not post the specified contact info for the agent on its site, or does not file the info with the US Copyright office, this can cause the loss of safe harbor status.

If the provider fails to respond to valid takedown notices, this can cause the loss of safe harbor status.

Finally 17 USC 512 is a specifically US law. Full compliance may not protect the provider from suits filed in other countries. Many countries have somewhat similar laws, but the provider must comply with their specific provisions to gain immunity from suit inn those countries.