Whether an online service provider can be held to have adopted a reasonable termination policy for repeat copyright infringers under the DMCA, where the provider asserts an undefined 'I Know It When I See It' subjective analysis of uploader intent

QUESTIONS PRESENTED Under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, where an Online Service Provider’s (OSP) user uploads over 300,000 pieces of content in one year and had been the subject of numerous copyright complaints, yet whose access was still never terminated, whether the OSP can be held, as matter of law, to have adopted a reasonable termination policy for repeat copyright infringers where the OSP asserts its unwritten policy is to somehow assess, via an undefined “I Know It When I See It” type analysis, the subjective intent of the unknown, anonymous uploader. Whether the DMCA permits an OSP to itself review and then publish hundreds of thousands of pieces of user-offered content—where undisputed expert testimony showed 66% had watermarks/indicia of ownership and where another 20% had clear indicia of professional escape liability, at summary judgment, on the theory that there was neither actual nor apparent knowledge of the infringing activity on the site. Ultimately, whether OSP’s should receive immunity for copyright infringement liability where the same real-world counterpart businesses face copyright liability for the same volitional conduct—that is, whether the United States has two different bodies of copyright law, a free-pass standard for online businesses and a traditional copyright standard for brick and mortar businesses.