Searching for an Out: Rojadirecta, MyVidster, and the Knowledge Components of the Information Location Tool Exemption of § 512(d)

INTRODUCTION I. THE LAW AND HISTORY OF THE SAFE HARBOR PROVISIONS A. Internet Service Provider Definitions and Liability B. Text of the Digital Millennium Copyright Act [section] 512 C. Legislative History of [section] 512(d) II. ACTUAL AND RED FLAG KNOWLEDGE A. Actual Knowledge B. Red Flag Knowledge and Its Patent Roots C. Subjective vs. Objective: Actual vs. Red Flag Knowledge. III. APPLYING [SECTION] 5 12(D) TO THE ROJADIRECTA AND MYVIDSTER CASES A. The Rojadirecta Takedown B. The myVidster Case: Flava Works v. Gunter C. Do They Qualify for the Information Location Tools Exemption? CONCLUSION INTRODUCTION With technology evolving at a dizzying pace and providing new opportunities to connect with others, the united states government has tried to stay ahead of Internet copyright infringers. Of particular frustration to the government are websites such as Rojadirecta (1) and myVidster. (2) These sites, among many others, provide Internet users with the ability to stream unauthorized, copyrighted video from third parties directly to their computers. seeking to take down the domains of these websites, the government withholds the site from any functionality. But many of these pending cases have been dismissed before the courts could decide on the claims' substantive merits. Assuming that these third-party linking websites would have otherwise met the threshold to be found liable for copyright infringement, each might possess a defense against their charges through the Digital Millennium Copyright Act (DMCA), specifically through its "safe harbor" exemptions in [section] 512.3 While the bulk of legal discussion on safe harbor defenses deals with the first three parts of [section] 512, the fourth--less invoked part of limitations on liability relating to material online--specifically provides an exemption for "information location tools," provided they meet certain criteria. (4) This Comment will discuss the potential use of [section] 512(d) of the DMCA in connection with third-party video streaming websites, particularly the recent government seizures in Rojadirecta and litigation in myVidster. First, the Comment will examine [section] 512(d) of the DMCA, the various elements that comprise the section, and the legislative intent behind its drafting. second, the Comment will focus directly on the actual knowledge requirement within [section] 512(d)(1), and, in the absence of actual knowledge, the similarities in "red flag" knowledge to patent knowledge requirements. Finally, it will address the state of case law regarding websites such as Rojadirecta and myVidster, and analyze whether third-party linking websites such as these can legitimately claim to be information location tools or whether this section provides too much latitude for copyright infringers. I. THE LAW AND HISTORY OF THE SAFE HARBOR PROVISIONS A. Internet Service Provider Definitions and Liability Two definitions exist within the Digital Millennium Copyright Act [section] 512 that define who qualifies as a "service provider" eligible for one of the safe harbor exemptions. The first is limited to [section] 512(a) and protects transitory digital network communications. (5) In [section] 512(k)(1)(A), a service provider is defined as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material sent or received." (6) This definition provides the working framework for the remaining three safe harbor exemptions. More broadly defined, a service provider is "a provider of online services or network services, or the operator of facilities thereof." (7) This broader definition encompasses "services such as search engines, websites (including retail sites), hosting services, bulletin board and newsgroup operators. …