In this case, Corbis, the owner of copyrighted photographs, sued Amazon.com for copyright infringement after several of Corbis’ photographs, without its consent, appeared on third party vendor platforms hosted by Amazon.com. Amazon.com’s primary defense was that it is protected from liability for the alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). Thus, the Corbis case is pertinent to my analysis in that many of the issues facing YouTube in meeting the requirements of the DMCA were addressed in this case.
The Corbis court addressed the DMCA’s requirements that the service provider 1) not have actual or apparent knowledge of the infringing activity and 2) not have the ability to control the content of users’ postings. The Corbis court ruled that actual knowledge requires that the copyright holder provide evidence that it notified the service provider of the specific infringing material. The court also found that Congress contemplated that apparent knowledge of infringing activity requires that the service provider turn a blind eye to red flags of “pirate sites.” For purposes of my paper, the extent to which user sites are obviously infringing will be critical to the application of the knowledge test.
The Corbis court also amplified the DMCA’s right and ability to control test. It explained that the ability to control the infringing activity cannot simply mean the ability of the service provider to remove or block access to materials posted on its website or stored in its system. According to the court, there must be some level of active involvement with content decisions. In the case of YouTube, its screening techniques and its technology for identifying and removing infringing videos will be relevant to determine whether YouTube runs afoul of this requirement.
Whether or not YouTube satisfies the requirements of the DMCA, including its level of knowledge and the ability to control infringing activity, will be fact dependent. However, the court’s analysis in Corbis and its discussion of the DMCA’s legislative history will be helpful in applying the facts of the YouTube litigation to the law.