How fast is too slow when it comes to DMCA content removal?

Published On February 2, 2015 | By Anna Hsia | General

On January 23, 2015, a Delaware district court in Square Ring, Inc. v. UStream.TV, Inc., No. 09-563 (GMS) (D. Del.) denied UStream’s motion for summary judgment on copyright claims. The case stems from a 2009 pay-per-view broadcast of a March 21, 2009 boxing match between Roy Jones, Jr. and Omar Sheika. Prior to the live boxing match, copyright owner Square Ring sent UStream multiple letters, demanding that UStream prevent any live-streaming of the match. Despite these letters, UStream users uploaded the event on the UStream website. On Saturday, March 21, 2009, Square Ring sent UStream DMCA-compliant notices that included links to infringing content. UStream processed these notices and removed them from UStream’s website two days later, on Monday, March 23, 2009.

UStream moved for summary judgment on Square Ring’s copyright claim, arguing it was entitled to safe harbor protection under 17 U.S.C. § 512(c). UStream cited to Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 1008), where the district court held (arguably in dicta) that a takedown procedure is sufficiently expeditious where a provider “responds and removes noticed content as necessary on the same day the notice is received (or within a few days thereafter).” Square Ring argued that a factual issue remained, because the definition of “expeditious” under the Copyright Act depends on the factual circumstances and technical parameters of any case. And because Square Ring had given UStream multiple warnings of potential infringement of the boxing match broadcast, and the broadcast was a live, pay-per-view event, a 48-hour response time was not expeditious under the circumstances.

The court found that UStream was eligible for safe harbor, but held that a factual dispute remained whether UStream acted “expeditiously” to remove the infringing content. The court noted the “complete lack of legal precedent for this factual situation” and stated that it was “not prepared to make a factual determination as to whether UStream acted expeditiously as required by the safe harbor provision.”

The case demonstrates the uncertainty of certain provisions of the Copyright Act. Here, UStream responded to a Saturday DMCA request the next business day, but the court ruled that a factual issue still remained whether this was sufficiently expeditious. As the district court recognized, there is no bright-line standard for what suffices as expeditious Cf. Io Group, 586 F. Supp. 2d at 1149-50; UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099 (C.D. Cal. 2009) (finding that plaintiff had not rebutted showing that Veoh removed infringing content expeditiously by removing them on “the same day” or “within a day or two of notice”). UStream’s 48-hour response time has led to five years of costly litigation and demonstrates the need for guidance from the Courts and Congress as to when companies seeking safe harbor protection must take extraordinary measures to avoid costly litigation.

Photo by World Series Boxing from Flickr

About The Author

Anna Hsia maintains a diverse practice litigating complex business disputes and counseling clients on privacy issues. With broad litigation experience in unfair competition, false advertising, class actions, and other complex litigation, Anna guides clients through disputes in federal and state courts. As a Certified Information Privacy Professional, Anna has assisted clients with product development and compliance with privacy regulations such as the TCPA, HIPAA, COPPA, state-specific privacy regulations, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act.

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