Notice versus knowledge under the digital millennium copyright act's safe harbors

When Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998, the cooperation of both Internet service providers and copyright owners was essential to realizing Congress's goal of expanding information exchange over the Internet. Therefore, Congress rejected-proposals for direct infringement liability that threatened the viability of service providers and, instead, it created a notice-and-takedown scheme, which was inspired by the court's approach in Religious Technologies Center v. Netcom On-Line Communication Services, Inc. Section 512 of the DMCA provides safe harbors from liability for certain service providers, but copyright owners can warn a service provider of alleged infringement to commence a path to liability. Although section 512's language and legislative history suggest that the purpose of a section 512 notification is predominantly to trigger an investigation of the alleged infringement by the service provider, courts have conflated such notification with the knowledge element of contributory copyright infringement. This Comment proposes a framework for analysis that delineates between the knowledge requirement for contributory infringement and the notification requirements under section 512. By respecting the different functions of these requirements, this framework would better achieve legislative goals. The label "notice of claim" captures the preliminary, tentative nature of the service provider's knowledge after receipt of a notfication of claimed infringement. In contrast, the label "notice of actual infringement" represents a knowledge that relates to an infringement that has already and actually occurred. Distinguishing between notice of claim and notice of actual infringement will ultimately protect not only due process, by giving service providers an opportunity to investigate copyright infringement claims described in notifications, but also free speech, by discouraging hasty takedowns of material based solely on a copyright owner's claim.