Red Flag Knowledge
| Autor | Nicolo Zingales |
| Páginas | 263-264 |
263
Red Flag Knowledge
75 Red Flag Knowledge
Nicolo Zingales
‘Red flag knowledge’ is a term of art used in the copyright context
to infer knowledge on the part of an online service provider
without it having received a specific notice (hence its qualification
as ‘constructive knowledge’) about infringing activity which it
enables. Although US Congress did not explicitly include it in the
Digital Millennium Copyright Act (DMCA), it referred to this term
in the legislative history as equivalent to being “aware of facts or
circumstances from which infringing activity is apparent”, which
triggers an obligation of expeditious removal in the safe harbor of
hosting, caching services and information location tools established
in the Digital Millennium Copyright Act. It clarified that the goal was
to exclude from the safe harbor directories that “refer Internet users
to other selected Internet sites where pirate software, books, movies,
and music can be downloaded or transmitted” when infringement
“would be apparent from even a brief and casual viewing”.
With the DMCA in force, the term has appeared in several cases in
US courts, leading to diverging interpretations. For instance, in UMG
Recordings, Inc. v. Shelter Capital Partners LLC, the Ninth Circuit Court
of Appeals held (citing important precedents such as Sony Betamax
and Napster) that online service provider Veho’s protection under
the safe harbor was not lost on ground of a general knowledge of the
possibility that their platform could be used to share infringement
material isn’t enough to qualify as ‘red flag knowledge’. However, a
year later, in Viacom International v. YouTube, the Second Circuit Court
of Appeals explained that “The difference between actual and red
flag knowledge is not between specific and generalized knowledge,
but instead between a subjective and an objective standard.
In other words, the actual knowledge provision turns on whether the
provider actually or ‘subjectively”’ knew of specific infringement, while
the red flag provision turns on whether the provider was subjectively
aware of facts that would have made the specific infringement
‘objectively’ obvious to a reasonable person. The red flag provision,
because it incorporates an objective standard, is not swallowed up
by the actual knowledge provision under our construction of the §
512(c) safe harbor. Both provisions do independent work, and both
apply only to specific instances of infringement.
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