Wolk v. Kodak Reinforces DMCA Safe Harbors

Read @ newmediarights.org

Wolk v. Kodak Imaging Network, Inc., 2011 WL 940056 (S.D.N.Y. March 17, 2011)

Last month, a federal court in New York ruled on a case where an artist wanted to shift the burden of seeking out infringing works from herself to a website. Similar to the vein of a few hundred cases in the realm, the court decided in favor of protecting innovation.

The case is a reminder that the responsibility of finding infringing works is up to the copyright holder, not the website. A website that complies with the DMCA safe harbors is responsible for removing UGC (user-generated content) only if the copyright holder notifies them of the specific illegal content at that moment (a 512(c)(3) takedown notice). It’s not responsible for future occurrences.

Sheila Wolk is a creative visual artist. You can see her creativity at work on her website – http://www.sheilawolk.com/. After posting her work online, some of her work was uploaded to the website Photobucket without her authorization. Ms. Wolk sent 512(c)(3) takedown notices to Photobucket. Photobucket complied with these notices and took down the material.

However, Ms. Wolk became tired of sending these DMCA-compliant notices. She sued Photobucket because she believed that the website should have known of the infringing acts based on her previous 512 (c)(3) takedown notices. She contended that she was under no obligation to keep sending takedown notices. The court sums up her position: “Plaintiff contends that Photobucket is now aware that her copyrights are being infringed on its site, and it must now police its sight [sic] to uncover current infringements and prevent future infringements, without her providing DMCA-compliant notice in each instance.”

To date there have been a number of section 512 rulings on cases similar to Wolk. The court seems to dispose of this case in rather similar and routine fashion. Essentially, shifting the burden of policing the website for anything that breaks the law, particularly copyright infringment, would go against the public interest and defy the purpose of the DMCA which was “to facilitate the growth of electronic commerce, not squelch it.” Io Group, Inc. v. Veoh Networks, Inc.

In a relatively short decision, the court found that Photobucket is protected by the “safe harbor” of the Digital Millennium Copyright Act and therefore can’t be sued for copyright damages. The case is still technically ongoing, but it suggests as the Veoh and Viacom decisions before it, that those who bring copyright allegations must have a strong showing of “knowledge”or “red flags of infringement” to kick internet companies, such as Photobucket, out of the “safe harbor” of the DMCA.

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