Three Notice Failures in Copyright Law
Abstract
This article explores the nature, effects, and means of correcting three instances of notice failure arising from the copyright industries’ evolving enforcement efforts in the digital networked environment. The first two instances of notice failure—“red flag” knowledge under the DMCA and ex parte domain name seizures under the PRO-IP Act—involve legislative failures to appreciate the necessity of notice. The third instance of notice failure— injunctions against nonparty online intermediaries in “pirate site” cases— involves judicial failures to appreciate the insufficiency of notice. Each of these notice failures is associated with a different aspect of online copyright enforcement. All three raise fairness issues and increase operating costs and risks for a wide range of online intermediaries, including search engines, cloud storage services, social media platforms, domain name registrars, payment processors, advertising networks, and content delivery networks.