Isn’t Infringement Ever Apparent?: Toward a Balanced Reading of §512 of the Digital Millennium Copyright Act

Abstract

This Article argues for a moderate but significant recalibration of the dominant interpretation of §512 of the DMCA. While ISPs are correct that the existing language of §512 does not give copyright owners a right to the “take down and stay down” regime they would prefer, it does ask more of them than is presently being required. Receipt of a takedown notice does provide an ISP with information that is supposed to be relevant to its awareness of other apparent infringement beyond that specifically identified in the notice. Moreover, the standards for what facts and circumstances give rise to knowledge of “apparent” infringement have been construed in a manner more stringent than those commonly applied even to criminal defendants or persons facing civil forfeiture. Finally, the doctrine of willful blindness means that where circumstances indicate an objectively high likelihood that certain conduct is illegal, one has a duty to avail oneself of obvious opportunities to disconfirm the inference. This duty is narrow, and does not require an ISP to engage in comprehensive monitoring, filtering, or affirmatively searching for instances of infringement for which no red flag has been raised. But indicia of infringement are not as radically elusive as has been made out, and §512(m) should not be read so as to equate efforts to disconfirm already-known instances of likely infringement with the affirmative seeking out of evidence of infringement that the statute says is not generally required.