Effort to Capture ‘Red Flag’ Embodies DMCA Reform Struggle

[Captain Marvel]

Content creators, weary of having their work stolen and copied online, want to see a strengthening of the main U.S. copyright law compelling internet platforms to remove infringing material. Coming up with an acceptable solution, though, is far trickier.

At issue is language in the 1998 Digital Millennium Copyright Act requiring online platforms, such as Google LLC’s Youtube, Facebook Inc., and Twitter Inc., to respond to both “actual knowledge” and what’s commonly known as “red flag knowledge” of infringement to avoid liability for users’ actions.

Copyright holders, though, say courts have rendered “red flag knowledge” meaningless by essentially requiring platforms to send a takedown notice to compel removal—something that amounts to the platforms having actual knowledge. They would prefer the law required platforms to respond to more general indications of infringing activity.

But there’s no agreement on what language would serve the law’s core goal: protecting copyrights without forcing platforms to either monitor impossible volumes of content or cull noninfringing free speech.

The renewed debate, stirred in part by the Copyright Office’s report last month largely backing copyright holders, underscores a growing pressure on tech platforms to take more responsibility after maturing into cash cows. Meanwhile, tech groups and their supporters say the DMCA largely works as designed, and an overhaul would either threaten online freedom or fail to address infringement.

Some corrective measures that have been proposed—such as automated filters and encoding a negligence standard—have been general. More specific language will be difficult, attorneys said.

“I don’t really know what language would reach that middle ground, that would help right the balance that the Copyright Office points to,” copyright attorney Scott Wilkens of Wiley Rein LLP said.

Flag on Infringement

The DMCA allows platforms to escape liability if they take down allegedly infringing material at a rightsholder’s request, among other requirements. But the takedown notice system is an unwinnable game of whack-a-mole, given the sheer volume of infringing material and ease of re-posting, critics say.

The law explicitly says it doesn’t require platforms to monitor content or affirmatively look for infringement. The lone exception is that they must adopt any “standard technical measure,” or an automated filtering system, crafted by a consensus of copyright owners and service providers.

Rightsholders hoped that would help solve the whack-a-mole problem. But once the DMCA became law, “platforms lost any incentive” to create and adopt such measures, former Recording Industry Association of America counsel Neil Turkewitz said.

“Platforms—otherwise highly engaged in the content by amplifying and curating—they resist doing anything until they’re notified,” he said. “We need to flip that.”

In May, the Copyright Office recommended possible DMCA changes, including suggesting Congress could “reiterate or clarify” the difference between actual and “red flag” knowledge, a common shorthand for awareness “of facts or circumstances from which infringing activity is apparent.” Copyright holders argue red flag means platforms must respond to infringement warning signs beyond takedown notices, but tech and public interest groups say that would remove incentives for platforms to do what they can to root out infringement, as such efforts would only add liability.

The biggest court opinion on the question sided with the platforms. The U.S. Court of Appeals for the Second Circuit dealt a blow to rightsholders when it defined DMCA “red flag knowledge” narrowly in its 2012 decision in Viacom International Inc. v. YouTube Inc. Viacom, whose legal team included Wilkens, argued that the term would be superfluous if the law required knowledge of specific infringement.

But the panel said the distinction between “actual” and “red flag” is not “specific” versus “generalized” but between a “subjective and objective standard.” Actual knowledge, it said, “turns on whether the provider actually or ‘subjectively’ knew of specific infringement.” Red flag turns on “whether the provider was subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person,” the opinion said.

“Courts say you need to know what specifically infringed. If you have that, you don’t need red flag knowledge. You have actual knowledge,” Copyright Alliance president Keith Kupferschmid said.

Senate Judiciary Intellectual Property Subcommittee chair Sen. Thom Tillis (R-N.C.) said he’s eager to learn more about the issue and that his “initial sense” is that red flag and actual knowledge have become indistinguishable. The law seems to put too heavy a burden on rightsholders to police cases that should be obvious to platforms, such as when a post is titled “PIRATED” Justin Bieber album” or “FULL Avengers: Endgame film,” he said.

But tech and public interest groups agreed with the court’s interpretation.

Red flag “is perhaps the least ambiguous provision” in the DMCA, Internet Association leader Jonathan Berroya told Tillis’ subcommittee at a June 2 hearing. “The ‘clarification’ the Office recommends with respect to red flag knowledge would change a fundamental feature of” DMCA’s design, he said. The association’s members include Twitter, Facebook, Google and Amazon.com Inc.

Few specific proposals that would heighten platforms’ responsibility, without creating unrealistic burdens or problematic incentives, have emerged. The debate “will be a huge fight” and “a war of lobbyists,” copyright attorney Margaret Esquenet of Finnegan Henderson Farabow Garrett & Dunner LLP said.

She agreed with the Copyright Office that “something more akin” to a willful blindness standard that imposes liability on entities that intentionally keep themselves unaware of infringement would make sense. A less subjective test “where platforms do have an obligation to make some effort to ferret this out, not just simply throw up their hands and say, ‘We have no idea what you’re talking about,’” would help, Esquenet said.

Technical Difficulties

Some groups say changing the DMCA would cause problems and still not end rampant infringement.

Adjusting the law to more easily cull infringing materials—possibly enabling removal of legitimate free speech—won’t help with the ultimate goal of getting artists paid, Corynne McSherry, legal director of digital civil liberties advocacy group Electronic Frontier Foundation, said.

And, as it stands now, takedown notices still give rightsholders “a really powerful tool” even if they don’t wipe out all infringement, she said.

“There’s no other area of the law where you can send a quick note, and that content has to be taken down,” McSherry said.

Meanwhile, platforms have voluntarily implemented some tools, critics of law change say. But the Copyright Office said limited adoption, ineffectiveness, and failure of one-size-fits-all models have hampered efforts.

Filtering algorithms can’t assess fair use and would struggle to keep up with shifting, complex rights ownership, public interest advocacy group Public Knowledge counsel Meredith Rose said. Big platforms are “generally good faith actors” that respond to takedown requests, Rose said. Big rightsholders generally co-opt efforts to target the real culprit—piracy sites cloaked in anonymity, often outside U.S. jurisdiction—to target mainstream sites for “leverage to get better licensing terms,” she said.

Copyright advocates say those platforms continue to profit extensively from traffic brought by infringing content even if they respond to DMCA requests, despite having the technical capabilities to address the problem.

The status quo, to a degree, works in web platforms’ favor and lessens incentive to alter it, copyright attorney Rachel Fertig of Morgan Lewis & Bockius LLP said. But some platforms have begun producing their own content, potentially spurring them to negotiate updates to the law, she said.

“You still have a significant amount of litigation, and with this Copyright Office report you have areas that could be re-exposed to litigation,” Fertig said. “That’s something that would motivate people to discuss changes.”