In the past several years, courts have issued a number of rulings on the issue of online service providers' secondary liability for copyright infringement in connection with online file sharing. Overall, it appears that the larger, more established providers who "play fair" with content owners tend to fare better than brasher, more rebellious providers. Is this correct because more rebellious providers are guiltier than the established ones? Or is there a double standard at play? Could the brash, rebellious "bad guys" ever win the protection of the safe harbor? It is difficult to make a direct apples-to-apples comparison, because each case has unique issues. When these cases are viewed together, a few consistent themes emerge.
First, the existence of some form of a copyright-compliance program (whether compliant with the Digital Millennium Copyright Act ("DMCA")) is an important factor to avoiding liability. Second, the percentage of infringing content on the service is important. Third, although the knowledge standards for secondary liability and the DMCA safe harbor do appear to be substantively distinguishable, the courts appear to require that the provider have more specific knowledge of the infringement when the provider has a copyright compliance program and the percentage of infringing content is low. Finally, there seems to be a general acknowledgement throughout the cases that the presence of infringing content does drive more traffic to the provider, in turn producing higher advertising revenue and other forms of revenue.
Christian E. Mammen,
File Sharing is Dead! Long Live File Sharing! Recent Developments in the Law of Secondary Liability for Copyright Infringement,
33 Hastings Comm. & Ent.L.J. 443
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol33/iss3/5