Udemy Qualifies for 512(c) Safe Harbor for User-Uploaded Courses–Kinsley v. Udemy
This case involves two videos by Kinsley that third parties uploaded to the education site Udemy. Udemy promptly honored Kinsley’s takedown notices, but he sued anyways. In a fairly efficient opinion, the court grants summary judgment that Udemy qualifies for the Section 512(c) safe harbor. Some of the statutory analysis:
Service Provider. Udemy “provides online services to its users in the form of its courses.”
Standard Technical Measures. “There is nothing in the record to indicate that Udemy interfered with any measures that its customers or instructors could use to identify or protect copyrighted works; in fact, their policies accommodated protective measures to stop infringing activity, and permitted users to see ‘free previews’ of courses and report potentially infringing courses and works.” I don’t think we’ve resolved how standard technical measures might work on paywalled content, a point that remains moot so long as nothing qualifies as a standard technical measure.
Actual Knowledge. No evidence Udemy had actual knowledge of the infringements before the takedown notices.
Right and Ability to Control. “Udemy has over 50,000 courses on its marketplace, and its ability to remove infringing content once notified does not create the ‘right and ability to control’ that § 512 contemplates.”
Expeditious Removal. “Courts have determined that response times to remove infringing material from entities’ websites or systems ranging from 5 to 14 days are expeditious….the Court has no difficulty concluding that Udemy’s responses to Mr. Kinsey’s [sic] copyrights complaints—one within 3 days, the other on the same day—were expeditious.”
Remedies. 512(c) only moots damages, not an injunction. But “fundamentally, there is no content Udemy can be enjoined to remove because it has already removed the infringing content and banned the account of the infringing instructors.” It’s clear 512(j)’s remedies limitation provision aided the court’s conclusion because it takes potentially broader remedies, like a staydown injunction, off the table.
Copyright Preemption. Kinsley threw many ancillary claims at Udemy: publicity rights, false advertising, receipt of stolen property, unjust enrichment, and more. The court says that copyright preemption wipes them all out. This is a little like how Section 230 moots attempted pleadarounds, but the combination of 512 and copyright preemption aren’t as strong at shutting down pleadarounds.
I regularly complain about how DMCA safe harbor opinions are long and difficult-to-blog because there are so many factors required to establish a successful 512 defense. In refreshing contrast, this opinion came in at a relatively svelte 7 Westlaw pages.