Google, Facebook and the MPAA take sides in a copyright case over the DMCA safe harbor

Big dogs like Google, Facebook, the Electronic Frontier Foundation, and now the Motion Picture Association of America have all filed briefs in an obscure copyright case currently being heard by the 7th Circuit Court of Appeals. At stake: what does a service have to do when a takedown notice is filed, and should that site have an additional burden to block repeat offenders?

The actual dispute is between myVidster, a relatively unkown video bookmarking service, and Flava Works, an adult film studio. Flava Works brought suit against Marques Gunter, owner of MyVidster. While Gunter responded to takedown notices from Flava Works, he did not do anything to stop users from repeatedly posting links to copyrighted work that had already been taken down.

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The crux of the issue is the Digital Millenium Copyright Act, or DMCA (.pdf file), which says that services like Youtube, Facebook, Tumblr, etc. are not responsible for copyrighted content posted by their users, so long as they respond to takedown notices in a timely manner.

But in this case, Judge John F. Grady wrote, “Gunter removes videos from myVidster that are listed in DMCA notices, but goes no further. Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection. It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers.” He ruled that Gunter was not protected under the DMCA.

This is obviously a concern to companies like Google and Facebook, which would have to make a substantial investment of time and money if they wanted to keep all copyright offenders off their services, and have until now relied on the DMCA for protection.

Image from Flickr user watchsmart