Whatever Happened to the “Red Flag” Test?


Recent case-law may unfortunately embolden owners of user-generated Internet sites to argue that §512(c) of the Digital Millennium Copyright Act provides immunity to claims of secondary copyright liability unless copyright owners have provided the sites with notices that list the specific infringing files. But, as the legislative history of that provision and thoughtful court decisions make clear, the Congressional intent was to revoke the limitation on liability once such sites becomes aware of a “red flag” from which infringing activity is apparent. Notice of specific infringing files is not required.

Frank P. Scibilia, a partner in Pryor Cashman's interdisciplinary New Media Group, and Vanessa G. Lan, a litigation associate, have authored an informative article that argues for a reaffirmance of the correct “red flag” standard. The article, entitled Whatever Happened to the “Red Flag” Test?: Knowledge of Infringing Activity On- and the Burden to Police- User-Generated Content Sites After CCBill, Visa, Io and eBay, has been published in the Fall/Winter 2008 edition of the New York State Bar Association’s Entertainment, Arts and Sports Law Journal

(Volume 19, Issue 4).

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