A Simple Proposal

The knowledge of noninfringement it takes to be liable for sending a false takedown notice under section 512(f) should be the same as the knowledge of infringement it takes to lose the safe harbor under section 512(c)(1)(A). Who’s with me?

A straightforward and simple proposal that, in light of what is happening with SOPA, has zero chance of going anywhere in Congress. Kind of like fixing the fair use and trafficking problems with the anti-circumvention measures.

Well, this one could also be implemented by judges.

Maybe. But “knowingly materially misrepresent[ing] … that material or activity is infringing” sounds different to me than “actual knowledge that … material or an activity using the material on [a] system or network is infringing.” In particular, I think you’d have to read “materially” out of 512(f) to equate the standards.

“[M]aterially” modifies “misrepresents,” not “knowingly”: this one is easy. A knowing but immaterial misrepresentation shouldn’t be problematic. I think the harder part is the “actual knowledge” and “aware of facts or circumstances” language of 512(c)(1)(A).