Losing the ‘Safe Harbor’: No DMCA protection without the ‘D-A’ (Part 2 of 3)

Today I took a look at Square Ring v. U-Stream et al., a not-so recent Delaware case (filed in 2009) just now reaching the stage where the Court is ruling on various motions for summary judgment.  The recent Memorandum provided by the Court is compelling for a couple of reasons, the first of which being Square Ring’s ability to survive U-Streams motion for judgment because of the lack of legal precedent around the meaning of “expeditiously.”

As I mentioned in my last post, proving an act is ‘expeditious’ at pre-trial is a challenging prospect because, as highlighted by other courts, “the inquiry into ‘expeditiously’ was meant to be a factual rather than a legal inquiry.”  This is further compounded by the limited legal authority discussing the matter.

In Square Ring the record indicates there may have been a temporal range of less than 48 hours between notification and response.  However, the notification lacked complexity in all respect – there were only three “channels” identified.  This infers that “expeditious” in this case will, or should, be interpreted as being something more limited in temporal scope than in cases with notifications involving complexity.

What may be of added critical importance here is that the infringing content was a live stream of a sporting event – thus, not acting expeditiously (or as requested by Square Ring, “Immediately” or “Simultaneously”) resulted in the infringement of the entire event.  Once the live event was over, the point was moot.  Damage done.

On the merits the Court will have to decide if “expeditiously”, under these facts, is more akin to ‘immediately’ or ‘simultaneously’ (or as I have suggested, reasonable urgent haste).  Given the lack of complexity, and the plain meaning of expeditious, I think it could be reasonable for a factfinder to find that definition suitable for service providers providing live streaming capability.

Square Ring was also interesting because the Court took the time to delineate between “Threshold” and “Specific” Requirements of the DMCA.  What the Court meant here is that any Service Provider attempting to benefit from a safe harbor must do two things:

1) Satisfy Threshold Requirements of 512(i)(1) (conditions of eligibility) and 512(k)(1)(B) (definition of ‘service provider’); and then
2) Satisfy Specific Requirements of 512(a), (b), (c), or (d), which would be specific to whatever category the Service Provider fits under.

As Square Ring related to user-stored content, the Court focused on the provisions of 512(c)(1)(A-C), which is where the “expeditiously” component comes into play.  What I found further curious was the Court’s lack of reference to 512(c)(2)!?!

Certainly if a Service Provider fails to satisfy the ‘specific requirements’ of this section, the Service Provider risks exposure.  This subsection of the statute expressly provides:

Designated Agent. — The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent; (B) other contact information which the Register of Copyrights may deem appropriate.
That is, a qualifying Service Provider must identify a ‘Designated Agent’ (“DA”).  While the reasoning behind the Court’s lack of explanation is unclear in the Memorandum, it remains axiomatic that in order to garner the safe harbor benefit of 512(c), a Service Provider must satisfy the “specific requirements” of both subsection (1) and subsection (2).

Without the D and the A, forget the DMCA.