Whose Burden Is It Anyway? Addressing the Needs of Content Owners in DMCA Safe Harbors

I. INTRODUCTION II. BACKGROUND A. What is Secondary Liability? B. Secondary Liability in the Peer-2-Peer (P2P) Context 1. Napster and the Limits of Substantial Noninfringing Uses 2. Aimster and the Reframing of Sony 3. Grokster and Inducement of Infringement C. The DMCA's Safe Harbors and the Liability of OSPs 1. Section 512(i) Threshold Requirements 2. Personal Knowledge and Gain D. The DMCA's Ineffectiveness for P2P Services 1. Falling Short of the Threshold: Aimster 2. The Extended Knowledge Requirement: Napster E. IO Group v. Veoh--Changing Realities 1. Files Stored at the Direction of a Third Party 2. Actual or Apparent Knowledge of Infringing Activity (Contributory) 3. Right and Ability to Control Infringement (Vicarious) F. Viacom v. YouTube--Testing the Limits of Section 512(c) and Veoh 1. Files Stored at the Direction of a Third Party 2. Actual or Apparent Knowledge of Infringing Activity (Contributory) 3. Right and Ability to Control Infringement (Vicarious) III. LIMITING THE BURDEN AND ENHANCING COOPERATION-NOTIFICATION THROUGH TECHNOLOGICAL CONTROL MEASURES A. Who bears the burden of policing infringement? B. The Technical Requirements 1. Hash Values--Digital Fingerprints 2. Video Hashes--Difficulty C. Shortcomings of Current Video Fingerprinting Technology Use 1. The Lack of a Clear Standard in Video Fingerprinting Technology Will Result in a System that Is Not Administrable 2. Allowing Automatic Rejection of a Video Match Curtails Fair-Use Freedoms 3. Complete Automation of the Process Removes the Most Knowledgeable Party and Lowers Accountability D. Proper Use of Video Fingerprinting Technology E. Impact on YouTube Litigation IV. EXTENDING A KNOWLEDGE REQUIREMENT ACROSS THE ENTIRE SAFE-HARBOR PROVISION V. CONCLUSION I. INTRODUCTION The struggle between intellectual property (IP) rights and innovation has reached a crucial moment in this country. On one hand, IP rights provide incentives for people to create artistic, literary, and technological works, which benefit society. On the other hand, ongoing innovation has brought us to a point where information has never been more accessible and ideas have never been easier to share. Interestingly, many of the protected creations would not exist but for cumulative innovations that at times can threaten IP rights (and the incentives they provide). In reality, both schemes encourage creation of new goods, technologies, and art in different ways. Nowhere is this tension more palpable than on the Internet, where digital technology and widespread adoption have made it simple and inexpensive to copy, distribute, and display creative works to millions, almost instantaneously. The ongoing $1 billion lawsuit between Viacom and YouTube is the pinnacle of this conflict. (1) Viacom asserts, among other contentions, that YouTube bears liability for direct and secondary copyright infringement resulting from YouTube users' video uploads of Viacom content. (2) In response, YouTube invoked the protections afforded by the Digital Millennium Copyright Act (DMCA) to defend its activities. (3) The DMCA's Online Copyright Infringement Liability Limitation Act (Section 512) provides a framework for limiting an Online Service Provider's (OSP) liability for a third party's infringing use of its service. (4) The Act also provides a means for content owners to remove the infringing material from the OSP's Web site. (5) Nonetheless, copyright owners continue to pursue litigation against service providers as a means to prevent third-party infringement. (6) Large content owners frequently sue facilitators of copyright infringement rather than pursuing individual infringers. …