With respect to the requirement that the service provider accommodate and not interfere
with standard technical measures, the court noted that an example of a party’s failure to comply
with standard technical measures may include conduct that advises or encourages users to
conceal a work’s copyrighted status. To the extent the plaintiff contested this issue, the plaintiff
argued that Cracked distributed copyrighted texts and entered into some form of a distribution
agreements. The court noted that, while probative of other relevant considerations, these facts
were not evidence of interference with standard technical measures under the DMCA.^2768
Turning to the knowledge prong of Section 512(c), the court rejected the plaintiff’s
argument that Cracked had knowledge of the infringement based on keyword-targeted
advertisements that appeared with the posts of the plaintiff’s work by the third party. Even
assuming arguendo that the ads were not automatically generated, the court ruled that the
existence of such ads did not reflect awareness that the postings had infringed. The plaintiff also
argued that Cracked used a software tool called Tynt to measure search engine traffic to specific
pages. The court concluded that such a tool does not support an inference that the defendant was
aware of infringement, and instead was relevant only as to the defendant’s knowledge as to
visitors’ pageviews. Nor was the fact that the defendant had previously received a considerable
number of DMCA takedown notices from copyright holders sufficient in view of the Second
Circuit’s ruling in Viacom that the defendant must have knowledge that the specific works in
dispute were infringing, not merely knowledge or suspicion of broader infringement.^2769
The court found that the defendant had acted expeditiously to remove the infringing
content by taking the content down after the plaintiff filed his complaint but before her served
the defendant and had emailed the third party poster informing him of the infringement claim
and stating that his profile on Cracked would be deleted. Finally, with respect to the issue of
control, the court noted that the defendant’s use of Tynt to monitor Cracked traffic reported only
on site traffic volume and not the content of user postings, and therefore did not give the
defendant control over infringing content. Accordingly, the court ruled that the defendant was
entitled to the Section 512(c) safe harbor and entered judgment for the defendant.^2770
On appeal, the Second Circuit affirmed in a three-paragraph per curium opinion, finding
that Obodai’s appeal was without merit “substantially for the reasons articulated by the district
court in its well-reasoned summary judgment decision. In short, the district court correctly
determined that Demand Media was eligible for the User Storage Safe Harbor under the Digital
Millennium Copyright Act, 17 U.S.C. § 512, because the undisputed evidence established that
Demand Media satisfied the requirements under § 512(c) and (i). The record does not support
Obodai’s assertion that Demand Media’s use of the software tool ‘Tynt’ required the district
court to reach a different result.”^2771
(^2768) Id. at 13-14.
(^2769) Id. at 16-18.
(^2770) Id. at 19, 23 & 27.
(^2771) Obodai v. Cracked Entertainment Inc., 2013 U.S. App. LEXIS 10734 at 2-3 (2d Cir. May 29, 2013) (citation
omitted).