Square Ring, Inc. v. U-Stream

Case Title and Citation:  Square Ring, Inc. v. U-Stream et al., Civil Action No. 09-563 (GMS) (2015)[1]

Court: United States District Court, D. Delaware

Document status: Pre-Trial – District Court Memorandum on denial of U-Stream Motion for Summary Judgment.

Issue or relevant point(s): Whether or not U-Stream satisfied all requirements as a matter of law in order to receive the monetary liability ‘safe harbor’ benefit of the DMCA?

Ruling:  The Court denied U-Stream’s motion for summary judgment, emphasizing the complete lack of legal precedent surrounding the particular facts of the case.


Plaintiff Square Ring acquires or otherwise owns copyrights to protectable aspects of various sporting events, such as boxing and mixed martial arts (“MMA”).  Of significance Square Ring owns the rights to a boxing and MMA event (the “Event”) that occurred March 21, 2009.  Defendant U-Stream is purported as a “user-generated” content website (the “Site”) that allows users to view and share live streams and recorded broadcasts.  Among other things, users of the Site agree to, and are otherwise bound by, various publicly-accessible terms that includes information related to a DMCA policy.

As a preemptive attempt to limit infringement by Site users, counsel for Square Ring sent at least four (4) notifications to U-Stream’s designated DMCA agent prior to the occurrence of the Event.  As the Event had yet to occur, it was impossible for the notifications to provide any indication of where infringing material could be found.  However, Square Ring did request the Event be blocked and/or that Square Ring be provided with an ability to immediately or simultaneously remove infringing content.

On the day of the Event, Square Ring sent a compliant DMCA notice to U-Stream identifying three channels broadcasting the Event.  U-Stream responded two days (or approximately 48 hours) later that the infringing content had been disabled or removed.

Square Ring filed suit alleging, inter alia, “live streaming” is not subject matter that falls under the DMCA, and/or U-Stream failed to meet requirements that would make it eligible for ‘Safe Harbor’ protection(s).

Analysis Summary

As a preliminary point, the Court stated its lack of enthusiasm as to excluding ‘live stream’ material from the DMCA, thus focusing its discussion on whether U-Stream was safe harbor eligible or not.  The Court began by noting that in order to be eligible to receive the benefit of safe harbor, a party must meet components of two broad categories:

1) Threshold Requirements; and
2) Specific Requirements.
(1) Threshold Requirements
These Requirements require a party to: 1) qualify as a “service provider”; 2) demonstrate it has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat infringers; and 3) prove it accommodates and does not interfere with standard technical means by which copyright holders may identify protected copyright works.[2]

The Court had no trouble finding as a matter of law that U-Stream met these requirements: 1) U-Stream falls within the broad definition of 512(k)(1)(B); 2) U-Stream has a strong DMCA policy; and 3) Square Ring lacked evidence to indicate U-Stream failed to accommodate, or otherwise interfered with, standard technical means.

(2) Specific Requirements
These Requirements depend on which subsection of 512 applies.  In this particular case, the Court looked at the Requirements of 512(c) because infringement, if it occurred on the U-Stream system or network, occurred at the direction of a user.  Broadly speaking, the elements are: 1) lack of knowledge, or if knowledge, takes action; 2) no benefit or control; and 3) upon notification, respond or act expeditiously to remove, disable, etc. the indicated content.[3]

Here the Court found a total lack of legal precedent for the fact pattern to warrant denial of U-Streams motion.  More poignantly the Court believed it could not make any findings whatsoever because the record was lacking as to what transpired during the ~48 hours that passed between notification and response.  Thus whether U-Stream acted "expeditiously" or not was legally indeterminable at this stage of the proceeding.


This case is exemplary as to the quagmire that surrounds the DMCA safe harbor provided by 512(c).  With particular respect to what it means to act or respond “expeditiously”, it is hard for content owners and service providers to have certainty in this particular area of law.  On the other hand, if the case law is lacking precedent on a particular set of facts, this case illustrates the ability for a willing plaintiff to survive summary judgment and reach a triable issue of fact.

[2] See Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir.2013) (discussing 512(i)(1) (conditions of eligibility) and 512(k)(1)(B) (definition of ‘service provider’)).
[3] Id. (discussing 512(c)(1)(A-C)).