A TAKEDOWN OF 4CHAN’S TAKEDOWN: DMCA SAFE HARBOR IS PROSPECTIVE ONLY
September 11, 2014
On September 2, 2014, 4chan published a new policy for content removal. This shocked many, given that 4chan, the birthplace of Anonymous, has until now been that unadulterated place, that digital dystopia with few rules and a conch shell for every man, boy, and troll. The new policy came days after the notorious online hacking-stealing-dumping-circulation of nude celebrity photos. What started as a “leak” on AnonIB quickly became a tsunami when 4chan got ahold of the pictures.
The publication of a takedown policy is one of several threshold requirements for an online service provider to achieve “safe harbor” under the Digital Millennium Copyright Act (“DMCA”). The DMCA 17 US Code 512 is a federal copyright law that passed in 1998. It came about as a result of the US signing two World Intellectual Property Organization (WIPO) treaties. It limits online service providers’ liability for copyright-infringing material their users post. Plus, sites are relieved of all affirmative obligation to monitor user content in search of infringements. With safe harbor, sites are generally not liable for the copyright infringements caused by their users as long as they (the site) remove the infringing content once notified via a “Takedown notice.” Takedown notices incidentally are the main tool used by attorneys like me to remove revenge porn images from the web.
Safe Harbor under the DMCA doesn’t apply to websites that fail to designate an agent to receive Takedown notices. 512(c)(2). Information (i.e. name, address, phone number, email) for the designated agent must be accessible on the website and submitted to the Copyright Office. 4chan’s newly designated agent is 4chan, LLC. As noted at Torrentfreak.com, as of last week the agent was not yet listed in the directory of service provider agents at copyright.gov. This remains true to date.
The designation of a Takedown agent is but one of several criteria that must be met before a site is protected by DMCA safe harbor. Sites must also have “adopted and reasonably implemented” a policy that terminates access to the site for repeat infringers. They must “accommodate” and “not interfere” with industry standards for making it possible for copyright owners to identify and protect their works and to do so in a “reasonable and nondiscriminatory” way.
So the billion dollar question is whether 4chan’s safe harbor is retroactive (assuming hypothetically that the other safe harbor criteria are met, which IRL I don’t assume at all). Does their recent agent designation spare them from liability for the nude celebrity images posted there a week before? The answer is no. In Oppenheimer v Allvoices, Inc. (N.D. Cal June 10, 2014) the defendant service provider lost a motion to dismiss when it claimed that even though it didn’t have a designated agent at the time of the alleged infringement, safe harbor status was secured since they’d registered an agent before the lawsuit was filed. Allvoices, Inc. had a lot of chutzpah because mere months earlier it had already lost that very argument in a different case. As the court in the earlier case puts it, “Plantiff’s claims predate Defendant’s DMCA protection since Defendant’s allegedly infringing activity began a number of weeks or months prior to Defendant’s DMCA registration.” Nat’l Photo Group, LLC v Allvoices, Inc., (N.D. Cal. Jan. 24, 2014). (See also, Louis Vuitton Malletier, S A. v Akanoc Solutions, Inc. (N.D. Cal Mar. 19, 2010): “At a minimum, Defendants would not be able to claim the protection of the safe harbor provisions prior to designating an agent.” )
Referencing Perfect 10, Inc. v. Yandex N.V (N.D. Cal, May 7, 2013), the Oppenheimer court says: “Section 512(c)(2) ‘plainly specifies that a registered agent is a predicate, express condition’ that must be met and that ‘the safe harbor will apply ‘only if’ such agent has been designated and identified to the Copyright Office for inclusion in the directory of agents.’”
Unless the Copyright Office is lagging behind in updating its publicly available designated agent listings, to date 4chan still doesn’t have the agent prong of safe harbor satisfied. As we know from the cases above, posting the policy is not sufficient. 4chan must also file with the Copyright Office if it wants safe harbor.
The 2nd Circuit also gave the issue of retroactive safe harbor a nudge in footnote 14 in Viacom v Google on the far more nuanced topic of implementation of a repeat infringer policy, but ultimately decided that the issue was waived on appeal because it was given such short shrift (i.e. one sentence) in the brief.
When it comes to sites that host unlawfully infringing content, we often forget that some of the worst offenders don’t have DMCA safe harbor – whether it be no designated takedown agent, absence of a repeat infringer policy (or implementation of one), or an unreasonable or discriminatory practice that inhibits copyright owners from identifying and protecting their material. Many of us take it for granted (based mostly on the CDA) that websites are always immune from liability for user content. But the DMCA provides a path to intermediary liability for user generated content, at least when it comes to intellectual property. The value of that in practical terms is another consideration, though. For instance, I can think of several dedicated revenge porn sites that don’t meet the safe harbor threshold requirements. However, few victims are interested in the expense, burden, exposure, or time commitment involved in suing a website, even if the case does have merit. With all that in mind, it’s incumbent on attorneys to keep the DMCA in mind as a method for holding accountable some of the most major perpetrators of online privacy assaults and through which injunctive and equitable relief may be sought for clients.