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Liability

PuffCuff

Junior Member
#1
What is the name of your state (only U.S. law)? RI

A video sharing site was found to have hosted user-uploaded content that infringed your copyright (someone re-uploaded your movie for instance) and the site makes $20,000 from advertising on the video. You find out about this, and under the DMCA file a takedown notice, and the site removes the infringing content. Is the site then liable to be compelled to return the $20,000? The DMCA is unclear about this as the safe harbor provision doesn't really get into what happens when the site is actively profiting from the content. On one hand, nobody knew the content was infringing until the claim was brought (including me) but on the other hand, they can't just keep the money that was found to have been earned illegally.

I'm the copyright owner in this instance. Sorry for the weird wording, I needed to try to make it clear.
 
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FlyingRon

Senior Member
#2
No, it doesn't work that way for a couple of reasons.

First, a DMCA takedown just forces the content off the net. It doesn't result in any damages being paid to you or anybody else.
Even if you filed an infringement lawsuit, just because they made $20,000 doesn't necessarily mean anything in the judgment.
 

PuffCuff

Junior Member
#3
No, it doesn't work that way for a couple of reasons.

First, a DMCA takedown just forces the content off the net. It doesn't result in any damages being paid to you or anybody else.
Even if you filed an infringement lawsuit, just because they made $20,000 doesn't necessarily mean anything in the judgment.
That's not what I'm saying. I know the takedown only takes the content off the site. That's all well and good.

But now, with that in the rearview mirror, why would a new action against the hosting company, who made about $18-20k off of it not hold water? Shouldn't they have to give it back, as it was earned off of content they did not have the rights to exploit?
 

quincy

Senior Member
#4
What is the name of your state (only U.S. law)? RI

A video sharing site was found to have hosted user-uploaded content that infringed your copyright (someone re-uploaded your movie for instance) and the site makes $20,000 from advertising on the video. You find out about this, and under the DMCA file a takedown notice, and the site removes the infringing content. Is the site then liable to be compelled to return the $20,000? The DMCA is unclear about this as the safe harbor provision doesn't really get into what happens when the site is actively profiting from the content. On one hand, nobody knew the content was infringing until the claim was brought (including me) but on the other hand, they can't just keep the money that was found to have been earned illegally.

I'm the copyright owner in this instance. Sorry for the weird wording, I needed to try to make it clear.
You can sue the one who infringed (the one who took your video and published it).

If your video was registered with the US Copyright Office, you are eligible for statutory damages ($750 to $30,000 per infringed work; intentional infringement $150,000 plus per infringed work) or you could collect instead actual damages (and infringer's profits).

Copyright Act's Section 504 states that the copyright holder is entitled to recover the actual damages suffered as a result of the infringement and any profits of the infringer that are attributable to the infringement not taken into account in computing actual damages.

The site that hosted the video is immune from suit under the DMCA section 512 (Online Copyright Infringement Liability Limitation Act) and under section 230 of the Communications Decency Act, in most circumstances.

Here is a link to 17 USC 512, OCILLA: https://www.law.cornell.edu/uscode/text/17/512

Here is a link to CDA 230: http://columbia.edu/~mr2651/ecommerce3/2nd/statutes/CommunicationsDecencyAct.pdf
 
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