Innovative hosting of user-generated content on the Internet, and a subsequent increase in unauthorized copyrighted material among this content, means reimagining copyright jurisprudence. The issue of how we protect an owner's "exclusive" right to reproduce, distribute, and publicly perform his or her work, while not stifling advances in global communication and technology, underlies the concern in recent infringement suits brought against online hosts like YouTube, eBay, Hi5, and Veoh. See 17 U.S.C. § 106(1), (3), (4) (1976). But while the legal system has risen to the challenge with reinterpreted rules and legislation, Facebook continues to defy categorization.
This comment attempts to demonstrate the difficulty in categorizing certain service providers by looking at Facebook in the wake of the Viacom International v. YouTube, Inc. decision, No. 07 CIV. 2103, 2010 WL 2532404, at *8-9 (S.D.N.Y. June 23, 2010), of which Facebook filed a joint amicus brief in support of the defendants. Part I of the comment presents a brief overview of the Viacom court’s interpretation of “safe harbors” provided under the Digital Millennium Copyright Act (“DMCA”) and Facebook’s amicus brief. Part II explores whether certain activities on Facebook constitute copyright infringement. Finally, Part III pools these two together and examines why the DMCA “notice-and-takedown” process, as articulated in Viacom, may not be a workable copyright protection scheme for Facebook. Ultimately, I suggest that Facebook’s blurred private/public structure makes it unlikely that the DMCA notice-and-takedown scheme can adequately protect copyrights infringed by Facebook users.
I. Understanding DMCA “Safe Harbors” After Viacom
This past summer, JOLT Digest reported the resolution of the Viacom suit, a three-year-old battle in which Viacom sued Google’s YouTube for $1 billion, alleging that YouTube should be held liable for copyright infringements committed by its users. Viacom claimed that YouTube knew, or should have known, that works uploaded to the site were copyright protected—including over 100,000 videos allegedly owned by Viacom, which YouTube promptly removed upon notice by Viacom. The U.S. District Court of the Southern District of New York ruled that YouTube’s general knowledge that a substantial portion of videos posted to its site infringed copyright was insufficient to impose liability. Viacom, 2010 WL 2532404, at *8. The Court also ruled that YouTube’s prompt take-down of specific infringing material of which it was notified entitled it to “safe harbor,” or limited liability protection, established for Internet Service Providers (“ISPs”) under the DMCA. Id. at *9.
The DMCA is a 1998 amendment to the Copyright Act which, among other things, limits the potential liability of ISPs for copyright infringement by users. 17 U.S.C. § 512(c)(1999). It represents a congressional attempt to balance twin goals: first, to foster a hospitable global digital marketplace by affording copyright owners some measure of protection against same-time, widespread digital piracy; second, to shield ISPs from widespread liability so that they may continue to improve the variety of online services even when their efforts necessarily involve engaging in acts that would normally expose them to such liability. Viacom, 2010 WL 2532404, at *4 (quoting the Senate Committee report concerning the DMCA). To accomplish these goals, Congress created a series of “safe harbors” for certain common activities of service providers. Id. An ISP that qualifies for a safe harbor receives the “benefit of limited liability.” Id.
Under section 512(c) of the DMCA, ISPs receive safe harbor from monetary, injunctive or other equitable relief for copyright infringement that might attach because of user-uploaded material, provided the ISP complies with DMCA requirements. 17 U.S.C. § 512(c)(1999). To qualify, an ISP must (1) not have actual or constructive knowledge that material is infringing, or upon obtaining such knowledge act expeditiously to disable access to it; (2) not receive a financial benefit directly attributable to such material; and (3) upon specific notification of claimed infringement, expeditiously disable access to it. 17 U.S.C. § 512(c)(1)(A)-(C). Section 512(c)(3) describes a proper notification. Among other requirements, the notification must be in writing, be filed by the copyright owner or the owner’s agent, and sufficiently identify the copyrighted work so that the ISP can locate it. 17 U.S.C. § 512(c)(3). Section 512(m) states that evidence that a service provider monitors its service or affirmatively seeks facts indicating infringing activity shall have no bearing on the applicability of the preceding provisions. 17 U.S.C. § 512(m).
Bloomberg Businessweek reported that in May 2010, Facebook joined Yahoo!, eBay, and IAC/InterActiveCorp (the owner of over 50 brands, including Ask.com, Evite, and Match.com) to file an amicus brief supporting YouTube. These service providers argued that they depend on safe harbors, and that without this protection, the threat of widespread liability could severely hamper Internet innovation.
The Viacom court agreed. It analyzed the term “actual knowledge” in the DMCA and, as a subcomponent of the issue of knowledge, the allocation of responsibilities between the copyright holder and ISP under the DMCA notification rubric. Viacom, 2010 WL 2532404, at *8-9. The court expressed its agreement with the Ninth Circuit’s statement in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007), that “[t]he DMCA notification procedures place the burden of policing copyright infringement . . . squarely on the owners of the copyright.” Viacom, 2010 WL 2532404, at *8. The Viacom court accepted Facebook’s amicus argument that infringing works constitute a small fraction of the millions of works posted by users, and that an owner is better able to determine whether the use has been licensed, whether it is a “fair use” of the work, or even whether the owner or licensee objects to its posting. Id. at *8-9. Finally, the court interpreted section 512(m) of the DMCA to mean that although an ISP cannot turn a blind eye to a “red flag” indicating obvious infringement, it is not obligated to monitor user uploads and affirmatively ferret out infringing content. Id. The responsibility for identifying infringing content rests with the copyright holder.
The present copyright regime, as interpreted by the Viacom court, states that a qualifying ISP that complies with the DMCA’s notice and takedown procedures is entitled to safe harbor protection. Once an ISP receives notice of a specific infringement, the DMCA provides a safe harbor if the ISP acts expeditiously in removing the offending material, even if the ISP otherwise would be liable as a contributory infringer.
II. Understanding Facebook
Facebook’s social networking and file sharing capabilities are now legion, perhaps more so following the site’s depiction in the globally-released hit movie “The Social Network.” Bloomberg Businessweek wrote that Facebook is the largest social network in the world and the third largest U.S. Internet business, trailing only Amazon.com and Google Inc. in net worth among U.S. Internet companies. Bloomberg further reported that Facebook is the most trafficked website in the U.S, surpassing Google in March 2010. Facebook boasts over 500 million active users worldwide, more than 200 million of whom log on to Facebook on any given day. USA Today states that Facebook is one of the most popular depositories of photos on the Internet, with over 50 billion photos already uploaded to the site.
Facebook accepts new material every day at the direction of its users, and offers a host of services that expose the company to infringement liability. Viacom, 2010 WL 2532404, at *4. Its users create customizable profiles to which they can upload videos and pictures, copy and paste text, and link to content elsewhere on the Internet, which can be viewed or read on the user’s profile. By law, users of Facebook are subject to its Statement of Rights and Responsibilities, which warns users against posting content that violates another person’s intellectual property rights. Facebook, however, does not and arguably cannot stop users from doing so.
U.S. Copyright law gives a copyright holder certain exclusive rights, including the right to reproduce or publicly perform or display her work. 17 U.S.C. § 106(1), (4) (1976). Two characteristics of Facebook illustrate the complexity of determining whether activities on Facebook constitute infringement of these rights: (1) Facebook’s hybrid public/private model and (2) the character of different types of postings on Facebook.
(1) Facebook’s Hybrid Public/Private Model
User profiles, and the material on them, fall along a customizable range of privacy levels from completely public, such that anyone can access them, to completely private, where only “friends” can access. User preferences allow users to make some information (e.g., data shared on one’s “Wall”) public, and some information (e.g., photo albums) private.
Facebook’s “share” option disseminates material posted or uploaded on a user’s Wall to that user’s friends and, unless set otherwise, to the user’s “News Feed”, thereby allowing friends to view content the user has seen or uploaded. User A can “share” a video with her friends she posts, for example, or can “share” another person's (User B's) video via a link on User B’s posting. Her friends can share any of these videos with their friends, and so on. The result can be a rapid, viral spreading of content among multiple friend networks.
While the term “friends” ostensibly connotes a sense of privacy, it is not unusual for users to have upwards of 1,000 “friends” on Facebook. In 2008, TechCrunch reported that Facebook lifted a limitation that restricted users to no more than 5,000 friends. Facebook “friendships” thus raise the question of whether a work displayed on a profile to 1,000 or more “friends” constitutes a public performance or display.
The Copyright Act of 1976 grants a copyright holder the exclusive right, “in the case of . . . motion pictures and other audiovisual works, to perform the copyrighted work publicly.” 17 U.S.C. § 106(4). Under the Act, to perform or display a work “publicly” can include either of two behaviors. The first is performing or displaying a work “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” 17 U.S.C. § 101. Neither “substantial number” nor “normal circle” is defined by the statute, but Facebook inarguably has redefined how those terms were generally conceived in 1976 when the Act was codified. For example, movie theaters, which are considered “public,” do not hold one thousand, much less several thousand, viewers. Yet, a video posted on one user’s Facebook Wall can conceivably be viewed by several thousand friends—more when one considers the “sharing” function described above.
The second clause of the definition of a behavior constituting a “public performance” is “to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. Cartoon Network LP v. CSC Holdings, Inc. interprets this clause to mean that a transmission of a performance is itself a performance. 536 F.3d 121, 134 (2d Cir. 2008). It suggests that uploading a video to one’s Facebook Wall, for example, may satisfy the requirement of transmitting or communicating a performance or display of that work. The court in Columbia Pictures Industries, Inc. v. Redd Horne, Inc. quotes Professor Nimmer in stating that, “[i]f the same copy . . . of a given work is repeatedly played (i.e. ‘performed’) by different members of the public, albeit at different times, this constitutes a ‘public’ performance.” 749 F.2d 154, 159 (3d Cir. 1984). This suggests that, although all of a user’s friends are not watching the video posted to her Wall at the same time and on the same computer, their collective viewing at different times still may constitute a public performance.
Theoretically, then, activities done on Facebook may violate a copyright owner’s exclusive right both to display and to publicly perform his or her copyright work.
(2) The character of “uploads” on Facebook
There are two types of postings on Facebook: links, which display as the video (or medium linked to) on a user’s Wall and can be played without leaving the user’s Wall, and uploads, which are physically embedded on and hosted by the Facebook interface.
Regarding the first, Facebook does not allow users to embed a video, for example, from an external video site like YouTube onto Facebook. Instead, users are instructed to enter the link from the external site and then “share” it. The video content can then be watched on Facebook even though the site is not hosting the content. This type of posting, then, is similar to that found in Perfect 10 v. Google. 508 F.3d 1146 (9th Cir. 2007). The Perfect 10 court ruled that because Google does not store full-size photographic images but merely provides the HTML instructions leading to the images (or frames but does not host the work) it does not transmit a display of the work such as would trigger copyright infringement liability. Id. at 1159-62. The work perceived is not “fixed” on the site, and, therefore, the site does not communicate a copy and does not infringe. By this reasoning, similar types of unembedded postings on Facebook seemingly avoid the question faced in Viacom concerning embedded content on the YouTube interface.
In regards to the second class of postings, however, Facebook users can upload personal content, including videos and photos, to Facebook, and a successful upload stores the content permanently on Facebook. Such videos and photos are subject to the site’s Statement of Rights and Responsibilities, but complaints seeking takedowns of videos containing elements of copyrighted works indicate that infringing “personal” uploads can and do occur. By uploading a work, a user creates a copy of the work, and hosting the copy potentially subjects Facebook to a range of infringement claims if the work is copyrighted—for example, reproduction, public performance, and distribution (if additional copies are disseminated).
Many of these unauthorized postings on Facebook may be defensible under the Fair Use doctrine, which permits the use of copyrighted works without the copyright owner’s consent in certain situations in order to encourage the development of new ideas building on earlier ones. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007). A court can consider four main factors when determining whether the use made of a work constitutes fair use, each “to be explored, and the results weighed together, in light of the purposes of copyright.” Gaylord v. United States, 595 F.3d 1364, 1372 (Fed. Cir. 2010) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)). These four factors include the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the potential market for or value of the copyrighted work. Campbell, 510 U.S. at 577. Courts can and do consider other factors, and the outcome of cases considering a fair use defense are unpredictable precisely because the doctrine lacks fixed criteria. Consider an Economist article displayed on a Facebook Wall. This kind of posting tends to feature the full article without altering it; further, the poster’s act decreases the likelihood that another user viewing the article posted on Facebook would then pay to read the article on Economist.com. Posting an article in this way would probably not be considered fair use, but the variety of factors courts consider when determining fair use can split in such a way that outcomes are unpredictable.
III. Adapting DMCA “Safe Harbors” to Facebook’s Hybrid Private/Public Model
To recap, the Viacom court interpreted the DMCA safe harbor provision to mean that the copyright owner, and not the ISP, holds the responsibility for policing a website, identifying specific instances of infringement and notifying the ISP in accordance with “notice and takedown” procedures. A qualifying ISP then has an opportunity to act expeditiously to remove the offending material. Facebook sought this outcome through its amicus brief and pays scrupulous attention to the DMCA’s notice-and-takedown requirements: a search for “copyright infringement” elicits its automated IP infringement form, contact information for its designated DMCA agent, and details on its takedown process. Under the Viacom court’s ruling, Facebook would qualify for safe harbor, or limited liability protection, from direct or contributory infringement stemming from its users’ infringements—and Facebook relies on this likelihood.
While this interpretation of the DMCA provision may seem reasonable for YouTube, which has an open platform that users can police easily, it does not translate as a workable copyright protection scheme for Facebook, which has a closed or hybrid platform. Unlike with YouTube, a copyright owner would need to be “friends” with a user in order to see that user’s uploads and postings, rendering the copyright owner unable to police the site effectively for infringing uses of her work. A Facebook user’s ability to “share” works spreads the performance or display of that work beyond the originally contemplated circle of “social acquaintances,” thereby allowing much broader exposure of the copyrighted work. That a linked work is not “embedded” on Facebook’s site may skirt liability concerns as the law exists now, but policy and fairness concerns arguably call on Congress to consider the nature and reach of Facebook in light of the balance of interests articulated in the DMCA and, further, in the Constitution.
I do not raise these issues to suggest Facebook be curtailed in its services. Facebook provides a platform far beyond the original reach of artists in a way that advances the aim of Copyright law, to “Promote the Progress of Science and useful Arts,” far more than it impedes it. U.S. Const., art. I, § 8, cl. 8. Instead, I raise these considerations to propose that the judicial allocation of policing responsibility to copyright owners, coupled with Facebook’s privacy settings and sharing capabilities, suggest that the DMCA notification process cannot effectively protect copyright owners’ interest in the Facebook context. Viacom filed an appellate brief on December 3, 2010. Whether the Second Circuit will consider the aforementioned considerations in an attempt to promulgate rules that also translate to social networks like Facebook remains to be seen. Either way, the journey to a copyright jurisprudence that keeps up to date with technological innovation continues.
 Brief for Ebay Inc., Facebook, Inc., et al. as Amici Curiae Supporting Defendants, Viacom Int’l v. YouTube, Inc., No. 07 CIV. 2103, 2010 WL 2532404, at *6 (S.D.N.Y. June 23, 2010), 2010 WL 2147962 (available at http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv02103/302164/346/).
 Id. at *1.
 Justin Smith, The Future of Sharing on Facebook: A Hybrid Public/Private Model, Inside Facebook (Mar. 5, 2009), http://www.insidefacebook.com/2009/03/05/the-future-of-sharing-on-facebook-a-hybrid-publicprivate-model/.
 Video: Uploading and Viewing Videos: How Can I Upload a Video from YouTube or Another Video Site?, Facebook Help Center, http://www.facebook.com/help/?faq=14481&ref_query=embed.
 Video: Uploading and Viewing Videos: How Do I Add Videos to Facebook?, Facebook Help Center, http://www.facebook.com/help/?faq=13382&ref_query=embed
 See, e.g., Mike Masnick, Facebook Using DMCA Notices to Takedown Private Videos, TechDirt (Oct. 30, 2008, 10:03 AM), http://www.techdirt.com/articles/20081029/0355142684.shtml.