What does &quot;actual knowledge&quot; mean in the context of DMCA safe harbors? According to 17 U.S. Code § 512 - Limitations on liability relating to material online (emphasis mine): A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; Is &quot;actual knowledge&quot; the same thing that's detailed in paragraph (3) &quot;Elements of notification&quot;? Or does it refer to something else? In either case, has the interpretation been tested in court?
The particulars of "actual knowledge" are addressed in Viacom v. YouTube. The ruling from the appeals court states (emphasis mine): Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove... Thus, actual knowledge must be knowledge that is specific enough to allow a service provider to take action against specific infringing content. "General" knowledge of infringement is not specific enough to be actionable, so it cannot qualify as "actual knowledge". (e.g., The general knowledge, "In the past, about 5% of the videos uploaded to our site were infringing, and we expect that trend continues into the present, so some of our videos right now are probably infringing," is not actionable to specific videos, so it does not quality as "actual knowledge".) That ruling also clarifies the distinction between (i) and (ii), which are respectively termed the "actual knowledge" provision and "red flag" provision: In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. Actual knowledge is different from a notification, which the service operator must respond to according to section (c)(1)(C) (whereas your quote is from (c)(1)(A)): (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Expeditious removal is required in either event: the operator has actual knowledge of infringement, per (c)(1)(A)(i), or the operator gets a notification, per (c)(1)(C). Actual knowledge and notifications are different, but they impose similar responsibilities for the operator.
There is not necessarily a contradiction. Information that they may keep may be: Account information Subscriber information Information on breaches of the Terms of Service or Agreement So yes, they might certainly not keep any logs &ndash; although that claim is doubtful, since they almost certainly keep at least error-level logs of their services &ndash; but that doesn't mean that they have no information to disclose to law enforcement. It's also questionable what "logs" refers to &ndash; would aggregate statistics be considered a log, by law? Would your last known IP address be considered a log, provided they don't keep any other history?
NOTE: This answer assumes jurisdiction in the US. No. Length does not determine whether or not something is fair use or not. There was a court case (Harper &amp; Row v Nation Enterprises, 471 U.S. 539 (1985), all credit to Dawn) where it was determined that just a few paragraphs from a 300+ page biography were infringing content, due to them capturing the "heart of the work". As user6726 said, in your example the clips you mentioned are most likely licensed. Also, courts tend to look poorly on things that are simply "shared" claiming fair use against copyright claims. Now, if you were to use a short clip as an example of something you were explaining, teaching, or critiquing, that would be different and would more likely be fair use. It is important to note that there is (by design) not a clear cut line if something is or is not fair use. There is a set of guidelines, but determination is made on a case by case basis There are a couple of cases that it is out and out NOT fair use, but none for fair use. This is because fair use is an affirmative defense, which is to say, you admit to the offense, but claim an exception to the rule. Self-defense as a defense to charges of homocide, assault, etc. works in a similar manner.
I'm not sure it makes sense to talk about having "jurisdiction" over an IP address, for the purposes you're discussing. If you wanted to sue the IP address itself--something that is possible under limited circumstances--then you might need to locate it for jurisdictional purposes. But I don't think that's what you're talking about. You're talking about taking civil or criminal action against the people who are using the IP address to commit crimes. What matters, in that case, is not a theoretical legal question about the location of an IP address. It's questions like: where do these people live? Where do the people downloading the illegal content live? Where are the physical servers located? ("In the cloud" is not an answer--there are physical servers somewhere making up that cloud). For jurisdictional purposes, the chair they're sitting in when they upload the illegal data, and the location of the AC power outlet the physical server is plugged into, are as important as, if not more important than, the metaphysical "location" of the IP address of the server.
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
Criminal copyright infringement is defined by 17 U.S. Code § 506 and by 18 U.S.C. § 2319. The latter section simply sets penalties, the provisions of 17 USC 506(a)(1) define the offense. It requires &quot;willful infringement&quot; for any offense. There are three sub-paragraphs which define forms of criminal copyright infringement. 17 USC 506(a)(1)(A) makes criminal any wilful infringement &quot;for purposes of commercial advantage or private financial gain&quot;. This need not mean that the infringer made an actual profit, merely that s/he hoped to do so. In United.States v. Cross, 816 F.2d 297 (1987), the US Seventh Circuit Court of Appeals wrote: A conviction under 17 U.S.C. § 506(a) does not require that a defendant actually realize either a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit. of financial gain or benefit. 17 USC 506(a)(1)(B) makes criminal any wilful infringement: by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000 17 USC 506(a)(1)(C) makes criminal any wilful infringement: by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution. So 17 USC 506(a)(1)(B) would apply to a person who made copies, even at no charge, of works with sufficient retail value, and 17 USC 506(a)(1)(C) would apply to someone who &quot;leaked&quot; a manuscript that was being prepared for commercial publication to the internet or another public computer network. Either of these could be charged when a person had not made any money on the infringement, nor attempted to make any. They were both added to the law in 1997. by the &quot;No Electronic Theft Act&quot;, in response to the case of Brian LaMacchia, who created an online service for exchanging unauthorized copies of commercial computer programs. Because he made no charge, the case against him was dismissed by the trial court. See United States v. LaMacchia, 871 F. Supp. 535 (1994). I have not found any reported cases where there was a criminal conviction for a person who made no charges for infringing copies or acts. But most such cases are not reported in sources accessible to ordinary, free-of-charge search engines. Prof. James Gibson, University of Richmond School of Law writes in &quot;Will You Go to Jail for Copyright Infringement?&quot;: But will an infringer actually go to jail for copyright infringement? Highly unlikely. While the percentage increase in convictions is significant, the absolute numbers are small. ..., there were fewer than two hundred criminal intellectual property convictions in 2010 (and some of those were trademark cases). In comparison, 1,984 civil copyright infringement lawsuits were filed in the same time period. A copyright infringer’s chances of being sued for damages or an injunction are therefore much greater than his or her chances of being charged criminally. Moreover, both criminal convictions and civil suits have been decreasing in number. Convictions peaked at 224 in 2007, and civil cases reached their high of 5,488 in 2006. ... Indeed, the main takeaway from these figures is that the chances that a copyright infringer will suffer any legal consequence – criminal or civil – are vanishingly small. (citations omitted) Trotter Hardy, Professor of Law and Associate Dean of Technology, College of William &amp; Mary School of Law, in the December 2002 article Criminal Copyright Infringement in the William &amp; Mary Bill of Rights Journal finds criminal copyright cases increasing from 22/year to 207/year over the period from 1980 to 2002, but none of the cases cited in that article other than the LaMacchia case seem to have been of a person who did not attemtp to make a profit on the alleged infringement. In short, the law, makes this very possible, but I have not found any evidence that it actually happens. I should mention that violation of the anti-circumvention provisions of the DMCA (17 U.S. Code § 1201 (subsections (a)(1)(A), (a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(1)(A), (b)(1)(B), and (b)(1)(C)) is a crime, but none of these offenses are infringements of copyright.
united-states In US law this is covered by 17 USC 512 (c) which was added to the US copyright law by the Digital Millineum Copyright Act (DMCA) Under that law, the service provide is not liable if The service provider does not actually know that content posted is infringing; and The provider does not have good reason to belive that content is infringing; and The provider promptly removes or makes inaccessible infringing content once the provider knows or has reason to believe that content is infringing; and The provider complies with the DMCA take down procedure; and The provider has and publishes the contact info of a designated agent to receive complaints and takedown notices. (The above is a paraphrase of the actual text of the law, rewritten for clarity.) The above is all true no matter how short or long the videos or music selections may be. The length is not relevant, except as it may affect a claim fgor fair use, where length is only one of the factors to be considered. The above would also apply if the video, as opposed to the music, was a copyright infringement. Note that the individual poster can still be liable for copyright infringement, and the service provider may be required to respond to a subpoena for information identifying posters. Note also that a service provider must warn posters not to post content protected by copyright to which the poster has no rights, and must have some procedure in place to limit or cancel the access of posters who persistently post infringing content.
the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply &amp; demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled.