The application and interpretation of § 512(c)’s safe harbor of the Digital Millennium Copyright Act (DMCA) has been regarded as a notoriously inexact science that provides a confounding experience to both legal practitioners and judges. Much of the disagreement is based on the fact that the DMCA was passed in 1998 as a compromised regime of limitation to copyright liability for online providers, based on notice-and-takedown procedures, whereas the common-law jurisprudence of secondary liability keeps expanding as technologies continue to evolve. The result is a stark contrast between the knowledge theory that determines safe-harbor eligibility of a service provider and the one that determines whether a cognitive element under contributory liability doctrine has been met. On one hand, the incongruence between these two cognitive theories has threatened the integrity of the DMCA’s safe harbors. On the other hand, courts have been unable to provide any useful guidance for a practical application of a “red flag” test – a tool designed by Congress to combat online piracy and to distinguish responsible service providers from cynical ones.
This paper suggests that, for the safe harbor to achieve its central purposes, future interpretations of the § 512(c) must be undertaken under the principle that the knowledge elements of the DMCA are inherently non-coextensive with that of contributory liability doctrine. The paper argues that courts’ repeated failures to demonstrate how the red flag test can be concretely applied have led to a now predominant reliance on the willful blindness doctrine in establishing apparent knowledge. The Ninth Circuit’s recent decision, UMG Recording, Inc. v. Shelter Capital Partner LLC, managed, to some extent, to reduce ambiguities that have long plagued judicial determinations of the red flag test and re-attuned it to the underlying structure of § 512(c). However, it is suggested that Congress initiate a public- participation program for the purpose of revising the means through which “apparent knowledge” could be demonstrated while preserving the integrity of the DMCA’s notice-and- takedown safe harbor.