UStream’s Attempt to Invoke DMCA Safe Harbor Protection Denied on MSJ

Authors: Margaret A. Esquenet, Danielle Wright Bulger

The United States District Court for the District of Delaware recently denied defendant UStream’s motion for summary judgment against Square Ring, raising the concern that an Internet Service Provider may not be entitled to the safe-harbor protection provided by the Digital Millennium Copyright Act if it fails to remove allegedly infringing content in a timely manner.

Square Ring, a boxing promotional company that licenses boxing-match rights to television networks, bought suit against user-generated content website U-Stream in 2009. Square Ring claimed UStream did not immediately remove or disable access to a copyrighted, March 21st boxing and mixed martial arts broadcast. In anticipation of the event and potential infringement, Square Ring sent a notice of infringement, including a demand that access to the broadcast be blocked on UStream, prior to the match, or that staffing be made available so the content could be deleted “immediately upon notification.” On the evening of the match, Square Ring sent additional notices that three channels were broadcasting the program. UStream responded two days later, notifying Square Ring that the allegedly infringing content on the three channels had been removed.

In its decision, the district court concluded that because UStream provides a website where users can stream, share, and comment on user-generated content, it qualifies as an internet “service provider” as contemplated by the DMCA. Therefore, the first threshold requirement for safe-harbor protection shielding against copyright infringement had been met. Moreover, because UStream has a DMCA-compliant policy which copyright owners can use to report alleged infringement, and because the website takes active steps to limit infringement and does not interfere with technical measures used by copyright owners to protect works, the second and third prong of the safe harbor eligibility requirements were also met. Despite complying with the threshold requirements, the court was concerned that UStream may not be able to satisfy the “specific requirements for the applicable safe harbor provision.” In particular, the court found that questions of material fact existed as to whether UStream was “willfully blind” to the infringement; whether the pre-event notices constituted “red flag knowledge,” and whether UStream’s 48 hour delay in responding to Square Ring undermined its claim that it “acted expeditiously” to remove the content, as required by the safe harbor provision.

In light of its conclusion that triable issues existed, the court denied UStream’s motion for summary judgment.


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