This article from the California Law Review attempts to highlight the legal difference between notice and knowledge regarding cases of infringement. When Section 512 of the DMCA was written, Congress intentionally did not make service providers directly liability for infringing material, anticipating that this would burden providers and slow growth of the internet. In creating the notice and takedown procedure, Congress wanted to create a system where notices would be sent to inform of “potential liability” in order to spark an investigation by the service provider – not simply demanding the removal of the material. The author says that because service providers have conflated the actual notice of potentially infringing material with the knowledge that the material is infringing, they have become prone to removing the material immediately, fearing that they will be sued for contributory copyright infringement. The author does not believe that the receipt of a notice is equivalent to outright knowledge of infringement, and is not sufficient to put the service provider at risk. The author also remarks that because the service provider is ultimately concern with its legal risk, this practice “poses serious First Amendment issues.”
The confusion surrounding when a service provider becomes liable itself will be an important factor in my paper. In trying to prove that the DMCA’s notice and takedown provision has been manipulated and abused, this article pointing out the origins of the problem will be essential. On a fundamental level, the misinterpretation of what a takedown notice actually means and its conflation with actual knowledge of infringement represents a systematic problem, one that while not anticipated has developed over time. Using this insight into what the initial Congressional intentions were and how those desires were not necessarily manifested in the law that was passed is a very important way to support my thesis.