The Digital Millennium Copyright Act of 1998 (DMCA) is the United States law that implements two key World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty. Online copyright infringement, however, is one of the most significant topics the DMCA addresses. Title II of the DMCA deals with online copyright infringement, and limitations on the liability of Internet service providers (ISPs). If a copyright owner suspects that his/her copyright is being infringed, he/she must follow the notice and takedown provisions set forth in Title II of the DMCA. This article informs about the good faith requirement in the notice and takedown provisions of the DMCA, and whether that good faith requirement entails a subjective or objective standard.
The DMCA, 17 U.S.C. §512(c)(3), states that a copyright owner who suspects that his/her copyright is being infringed, must notify the infringer and/or ISP according to the notice and takedown provisions set by this section. According to 17 U.S.C. §512(c)(3), the notification of claimed infringement must be in writing, and must be sent to the designated agent of the ISP. The notification must include the following:
"(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." [Emphasis added]
The good faith belief statement required by 17 U.C.S. § 512(c)(3)(v) has been the point of litigation in the U.S. Plaintiffs and defendants have questioned whether this good faith belief requirement entails an objective or subjective standard. The United States Court of Appeals for the Ninth Circuit and other court of appeals, such as the Tenth Circuit, have held that the good faith belief under 17 U.S.C. § 512(c)(3)(v) requires a subjective rather than an objective standard.
In Rossi v. Motion Picture Ass''''n of Am., Inc., 391 F.3d 1000 (9th Cir. Ct. App. 2004), the court held that the good faith belief under 17 U.S.C. § 512(c)(3)(v) entailed a subjective standard. Rossi owned and operated a Website called "internetmovies.com. This Website had announcements such as "Join to download full length movies online now! New movies every month:" "Full Length Downloadable Movies;" and "NOW DOWNLOADABLE." Motion Picture is a company whose goal is to prevent unauthorized copying, transmittal, and distribution of copyrighted movies or motion pictures. Motion Picture saw some copyright movies displayed at Rossi''''s site and believed that Motion Picture was infringing on their customers'''' copyrights. Following the notice and takedown procedure of 17 U.C.S. § 512(c)(3)(v), Motion Picture sent several notices to Rossi and Rossi''''s ISP informing them of the copyright infringement. Rossi''''s ISP warned Rossi of the possibility of shutting down the Website due to the alleged copyright violations. Consequently, Rossi transferred his Website to another ISP. Rossi''''s Website was down between 1 second and 72 hours, according to Rossi''''s complaint.
Therefore, Rossi filed a diversity action against Motion Picture alleging four claims: 1) tortious interference with contractual relations; 2) tortious interference with prospective economic advantage; 3) libel and defamation; and 4) intentional infliction of emotional distress. The trial court granted summary judgment for Motion Picture. Rossi appealed.
Among other legal claims, Rossi contended that although Motion Picture had complied with the notice and takedown provision of the DMCA, Motion Picture did not have sufficient information to form a "good faith belief" under 17 U.C.S. § 512(c)(3)(v). Rossi claimed that Motion Picture had not even attempted to download movies from its site, and that a reasonable investigation into the alleging infringing Website should have been performed. In other words, Rossi claimed that an objective analysis should apply to the good faith belief determination. Motion Picture, however, claimed that a subjective standard is to apply to the good faith belief determination under the DMCA. Indeed, Motion Picture provided case law supporting a subjective interpretation of good faith. Motion Picture also claimed that there was not Congressional intent to import a specific objective standard or reasonable investigation into 17 U.C.S. § 512(c)(3)(v).
The court concluded that "[W]hen enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness. The fact that it did not do so indicates intent to adhere to the subjective standard traditionally associated with a good faith requirement."
This decision, rendered by the Court of Appeals for the Ninth Circuit, and followed by some other circuits, confers an advantage to copyright owners, and forces Website owners to be more cautious when designing their e-business model involving movies or motion pictures. A subjective good faith belief is easier to prove for the copyright owner, and more difficult to contest by the alleged infringer.