Secondary Copyright Infringement Liability and User-Generated Content in the United States

Abstract

In the United States, the question of whether and when online service providers can be held liable for copyright infringement committed by their users has been one of the most heavily litigated controversies of the digital age. The answer to this question begins with the common law doctrine of secondary copyright infringement, as articulated by leading United States Supreme Court opinions in Sony Corp of America v Universal City Studios, Inc, and MGM v Grokster. In 1998, Congress enacted a statutory ‘safe harbor’ as part of the Digital Millennium Copyright Act (‘DMCA’). Section 512 of the DMCA limits secondary copyright infringement liability for various types of online intermediaries. Over the next two decades, the entertainment and technology industries waged epic court battles over the meaning of Section 512 and the shape of the secondary infringement doctrine in common law—most famously in Viacom International Inc v YouTube, Inc, in which the parties spent over $100 million in attorney’s fees. Though controversies around new business models and market entrants continue to arise and will do so for the foreseeable future, and some uncertainty remains—particularly with respect to the willful blindness doctrine— over the last ten years the dust has mostly settled in the law for intermediaries that host user-generated content (‘UGC’). In order for such intermediaries to avail themselves of the Section 512 safe harbor, they must comply with Section 512’s many requirements such as terminating the account of repeat infringers, but also may wish to take more active steps to identify and take down infringing content posted on their platforms. To that end, private ordering solutions such as YouTube’s ContentID and Copyright Strikes programs abound.

There have been multiple attempts at reform, including 2012’s Stop Online Piracy Act and companion bills, but none have been fruitful.8 It remains an open question whether the law strikes the right balance between preventing copyright infringement and enabling free expression and innovation—and if not, what reforms are warranted.