Language in the 1998 Digital Millennium Copyright Act (DMCA) has come under fire as content creators seek stricter laws for copyright infringement on the internet. The current language requires online platforms to respond to both “actual knowledge” and “red flag knowledge” of infringement to avoid liability for users’ actions. “Actual knowledge” refers to the platform subjectively knowing about the specific infringement, whereas “red flag knowledge” refers to the platform being notified of the infringement by the copyright holder. Copyright holders argue that courts have rendered “red flag knowledge” meaningless by simply requiring online platforms to send a takedown notice to compel removal, rather than putting onus on the platforms to proactively spot the infringement. From the copyright owner’s perspective, “red flag knowledge” ultimately results in “actual knowledge,” and the current language is not sufficient for protecting their work. However, tech groups and supporters feel that a change in the law would threaten online freedom and ultimately fail to address infringement, given the amount of content produced on these platforms. Bloomberg Law contacted Finnegan partner Margaret Esquenet for her thoughts.
The debate for DMCA language striking a balance between copyright holders and online platforms “will be a huge fight,” predicts Margaret. She believes it would be helpful to have 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.’”
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