Secondary Copyright Infringement Liability and User-Generated Content in the United States

In the United States, the question of whether and when online service providers can be held liable for copyright infringement committed by their users has been one of the most heavily litigated controversies of the digital age. This chapter answers these questions by reviewing the common law doctrine of secondary copyright infringement and all relevant case law behind it. It focuses on the interpretation of the Digital Millennium Copyright Act’s (DMCA’s) safe harbours before US courts, with special emphasis on the notion of actual and ‘red flag’ knowledge, wilful blindness, right and ability to control users’ behaviour, and inducement. This chapter focuses in particular on user-generated content (UGC) platforms by looking into the effects of the DMCA on the UGC market and the technological measures implemented to curb infringement on UGC platforms. The chapter also provides a review of legislative proposals to amend the legal framework that the DMCA implemented more than two decades ago and runs a comparative analysis with other similar international legislative frameworks.