Obligation to block re-uploaded infringing contents

In Viacom v. Youtube, Viacom alleges that even they send out a take-down notice to Youtube to ask them to take the infringing contents down, the infringing contents are always re-uploaded in minutes. This is one of the reasons that Viacom argued Youtube intentionally allow copyright infringement and build their business on it.

I’m thinking of proposing to amend ISP’s obligations in DMCA “safe harbor”. That is, to put an additional obligation on ISPs to block re-uploaded identical or similar infringing contents after receiving a take-down notice. I have two reasons as follow:

First, blocking identical or similar content to be re-uploaded is technically feasible.

Second, this is consistent with the original Congressional intent.

The Congressional intent of the DMCA safe harbor was to achieve a balance between the copyright holder and the ISPs, to some extent promoting continuous expansion of the Internet. In order to achieve it, the DMCA waived ISP’s duty to police the sharing forum, which means you can keep your eyes closed if nobody tells you that you have something infringing. However, it is obligated to take infringing contents down if the copyright holder sends out a notice. The rule of obligation allocation appears to be fair that one has the duty to police and the other has the duty to make sure to prevent infringement if told. It is also a requirement of “clean hand”.

According to the underlying rule of obligation allocation, it seems to be against the legislative purpose if the copyright holder has to send notice regarding the identical or similar content again and again to protect itself. This tends to break the balance the legislature tried to achieve. Therefore, once the ISP is told, it is fair to require ISPs to establish an infringement database to prevent the specific content from being re-uploaded and infringing again.

Lawrence