Red Flag Knowledge

Author: Nicolo Zingales

‘Red flag knowledge’ is a term of art used in the copyright context to infer knowledge on the part of an online service provider without it having received a specific notice (hence its qualification as ‘constructive knowledge’) about infringing activity which it enables. Although US Congress did not explicitly include it in the Digital Millennium Copyright Act (DMCA)¹, it referred to this term in the legislative history as equivalent to being “aware of facts or circumstances from which infringing activity is apparent”, which triggers an obligation of expeditious removal in the safe harbor of hosting, caching services and information location tools established in the Digital Millennium Copyright Act. It clarified that the goal was to exclude from the safe harbor directories that “refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted” when infringement “would be apparent from even a brief and casual viewing”.

With the DMCA in force, the term has appeared in several cases in US courts, leading to diverging interpretations². For instance, in UMG Recordings, Inc. v. Shelter Capital Partners LLC³, the Ninth Circuit Court of Appeals held (citing important precedents such as Sony Betamax and Napster) that online service provider Veho’s protection under the safe harbor was not lost on ground of general knowledge of the possibility that their platform could be used to share infringement material isn’t enough to qualify as ‘red flag knowledge’. However, a year later, in Viacom International v. YouTube⁴, the Second Circuit Court of Appeals explained that “[t]he difference between actual and red flag knowledge is not between specific and generalized knowledge, but instead between a subjective and an objective standard. 

In other words, the actual knowledge provision turns on whether the provider actually or ‘subjectively”’ knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement.

By contrast, in 2016, in Capitol Records v. Vimeo⁵ – a case in which Capitol Records asserted that Vimeo, a platform that allows its users to upload videos, was “not only aware of the copyright infringement taking place on its system, but [was] actively promot[ing] and induc[ing] that infringement [and] refusing to filter or block videos by using copyrighted recordings” – the Second Circuit held that, even where a copyright owner provides evidence that an online service provider’s employee viewed “a video that plays all or virtually all of a recognizable copyrighted song” that evidence is insufficient to establish red flag knowledge: the service provider must have actually known facts that would make the specific infringement claimed objectively obvious to a reasonable person. The same Second Circuit, however, has also recognized that a “time-limited, targeted duty” of inquiry to determine whether there is an ‘objectively obvious’ infringement does not run afoul of the prohibition of general monitoring in section 512(m).

Because of the confusion generated by the different articulation of red flag knowledge, the US Copyright Office has recently suggested a clarification in its report on proposed reforms to section 512 of the DMCA. In particular, it has advised clarifying the relationship between such knowledge and the prohibition of general monitoring and called for a broader notion of knowledge that is not linked to ‘specific’ infringing content.

References

Besek, J. M., Keiter, O. W. (2018). Capitol records vimeo: The peculiar case of pre-1972 sound recordings and federal copyright law. Columbia Journal of Law & the Arts, 41(4), 559-582. 

Toto, Carolyn. (2016). When it comes to the DMCA, a Red Flag becomes harder to Fly. Pillsbury. Internet and Social Media Law Blog. Available at https://www.internetandtechnologylaw.com/dmca-red-flag/. 

Terrica Carrington. (2018). Twenty Years of the DMCA: Notice and Takedown in Hindsight (Part II), Copyright Alliance Blog. Available at: https://copyrightalliance.org/ca_post/twenty-years-dmca-notice-and-takedown/.

US Copyright Office. (2020). Section 512 of title 17: A report of the register of copyrights. Available at https://www.copyright.gov/policy/section512/section-512-full-report.pdf.

1. Terrica Carrington. (2018). Twenty Years of the DMCA: Notice and Takedown in Hindsight (Part II), Copyright Alliance Blog. Available at: https://copyrightalliance.org/ca_post/twenty-years-dmca-notice-and-takedown/.
2. Toto, Carolyn. (2016). When it comes to the DMCA, a Red Flag becomes harder to Fly. Pillsbury. Internet and Social Media Law Blog. Available at https://www.internetandtechnologylaw.com/dmca-red-flag/. 
3. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Circuit, 2011).
4. Viacom International v. YouTube, (2nd Circuit Court of Appeals 2012).
5. Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016).

   Besek, J. M., Keiter, O. W. (2018). Capitol records vimeo: The peculiar case of pre-1972 sound recordings and federal copyright law. Columbia Journal of Law & the Arts, 41(4), 559-582.