Page 71 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

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eye to “red flags” of obvious infringement’.
Case law has also elevated the threshold of the knowledge standard. First, courts have
tended to have a higher standard for the level of ‘apparent infringement’ of information.
For instance, in Perfect 10 v. CCBill the Ninth Circuit court found that alluring names
such as ‘illegal.net’ or ‘stolencelebritypictures.net’ were not enough to establish red flag
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knowledge. This interpretation departed from the Congressional report, which explicitly
claimed that ‘words such as “pirate”, “bootleg” or slang terms’ are sufficient to constitute red
flag knowledge of obvious infringements.
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The courts have also applied the element of ‘specific infringement’ that the Congress
used to demonstrate ‘actual knowledge’ in the red flag test. In this way, the standard of the
red flag test was elevated from ‘knowledge of an obvious infringement’ to ‘knowledge of a
specific infringement’. For example, in the Viacom v. YouTube case, the court found that ‘[t]
he difference between actual and red flag knowledge is not between specific and generalised
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knowledge, but instead between a subjective and an objective standard’. Therefore, only when
YouTube had ‘knowledge or awareness of specific infringing material’ would actual and red
flag knowledge arise. The distinction between ‘actual knowledge’ and ‘red flag knowledge’
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based on a ‘subjective and objective standard’ was followed in another seminal ruling. In
UMG v. Veoh, the Ninth Circuit court held that ‘general knowledge that it hosted copyrightable
material…is insufficient to constitute a red flag’. Red flag knowledge required subjective
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awareness of facts ‘that would have made the specific infringement objectively obvious to a
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reasonable person’. By equating the standard of the red flag test with the standard of actual
knowledge, the courts simply read red flag knowledge out of the DMCA. 46
3) The right and ability to control infringing activities
ISPs should not have the ‘right and ability to control [the infringing] activity’ to escape
liability for vicarious infringement. The ‘right and ability’ element seems to be inconsistent
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with the other requirements in the statute. Pursuant to 17 U.S.C. § 512(i)(1)(A), a threshold
condition for safe harbour protection, is that the ISP should have ‘adopted and reasonably
implemented…a policy that provides for the termination in appropriate circumstances

39 S. Rept.105-190, at 48-49 (1998); H. Rept.105-551 (II), at 57-58 (1998).
th
40 Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9 Cir.2007).
41 S. Rept.105-190, at 48 (1998).
42 Viacom v. YouTube, Inc., 676 F.3d 19, 28 (2d Cir. 2012).
43 Ibid 30-31.
44 UMG Recordings, Inc. v. Veoh Networks, Inc., 718 F.3d 1006, 1022 (9th Cir 2013).
45 Ibid 1025.
46 Andrew Berger, ‘Viacom v. YouTube: Can A Web Host Welcome and Profit from Infringing Activity and then Claim Not to
Know About It?’ (IP in Brief, 30 July 2010) <http://www.ipinbrief.com/can-2/> accessed 19 May 2019.
47 17 U.S. Code § 512 (c)(1)(B).

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