by Shana Dines
In a previous article, we explained the Digital Millennium Copyright Act's "notice and takedown" and "safe harbor" provisions that were meant to insulate certain internet services from copyright infringement committed by their users.
Viacom sued YouTube in early 2007, alleging that at least 150,000 clips on YouTube included content owned by Viacom that had been viewed at least 1.5 billion times, in total. Viacom further condemned YouTube for profiting from a "massive copyright infringement."
Veoh, another online video site that offers a combination of licensed studio content and user-generated content, has also come under fire for hosting user-generated videos containing copyright infringements. While Universal Music Group (UMG) has a case against Veoh still pending, Veoh recently won another case against them based on the safe harbor provision.
Io, a producer of adult entertainment videos, sued Veoh for hosting videos with clips from ten of Io's copyrighted films that had been uploaded by users without permission. Io never filed take down notices, however, and Veoh first learned of this infringement with the filing of the lawsuit.
In opposing motions for summary judgment by both parties, Veoh ultimately came out victorious.
Judge Howard Lloyd, of the US District Court for the Northern District of California, ruled that Veoh had fulfilled the requirements necessary to be eligible for safe harbor protection and was thus not liable for copyright infringement.
Of the three prerequisites a service provider must complete in order to qualify for safe harbor, the case turned on the first, that a service provider had and reasonably implemented a policy of terminating repeat infringers.
There is an additional message that pops up every time a user uploads a video reminding users to not upload copyrighted material. At the time of the case, Veoh had terminated over 1,000 users for repeat copyright violations.
Nonetheless, Io claimed Veoh's policy was not reasonably implemented because it failed to detect repeat infringers using pseudonyms and fake email addresses to obtain new accounts. Io contended that this policy is not enough to qualify for the DMCA safe harbor provisions, but the Court disagreed.
Citing a decision from the Ninth Circuit (which includes California and is binding on this court), Judge Lloyd held that observing the DMCA requires reasonable, not perfect, policies of terminating repeat infringers. Further, just because a terminated user is able to make a new account "does not give rise to a genuine issue of material fact as to the reasonableness of Veoh's implementation."
Following this decision, Veoh has renewed their request for "safe harbor" immunity in their pending lawsuit by UMG. This case is in the US District Court for the Southern District of California, meaning that Judge Lloyd's reasoning is persuasive, but not binding.
This decision is also expected to influence Viacom's lawsuit against YouTube, which is in a New York federal court and is also not bound by the Veoh decision. However, Viacom have already issued statements saying they will not back down, calling YouTube a "business built on infringement."