Copyright Law Updates | New Judicial Opinions
September 8, 2008
Veoh Not Liable for Infringing Video Clips Uploaded by Its Users, CA Court Finds
IO Group, Inc. v. Veoh Networks, Inc.
No. C06-03926 HRL, U.S. District Court for the Northern District of California, 8/27/2008
In this copyright infringement dispute that pitted video-maker IO Group, Inc. ("IO") and video-sharing website Veoh Networks, Inc. ("Veoh"), the U.S. District Court for the Northern District of California ruled that Veoh should not be held liable for infringing video materials that are uploaded by its users. The District Court held that qualified service providers like Veoh are protected by the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”) that protects them from liability for claimed copyright infringement. Here, Veoh has instituted safeguards to qualify for coverage under such provisions. In particular, Veoh has an active system for dealing with copyright infringement on its site, ranging from having a "copyright agent" whose job it is to take care of complaints from copyright owners to a policy that terminates users who continue to upload infringing videos. In sum, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its Web site and works diligently to keep unauthorized works off its Web site. On the basis of the foregoing, the District Court granted Veoh's motion for summary judgment.
This is a civil action for alleged copyright infringement. Presented before the District Court were the parties’ cross-motions for summary judgment. Plaintiff IO moved for summary judgment on liability. Defendant Veoh sought summary judgment that it qualified for “safe harbor” under the DMCA, 17 U.S.C. § 512. Order, p. 1.
By way of background, IO, doing business as Titan Media, produces, markets and distributes a variety of adult entertainment products, including audiovisual works. It holds and owns a number of registered copyrights for its films. Id, p. 2. On the other hand, Veoh is a self-described “Internet Television Network,” which provides software and a website (veoh.com) that enables the sharing of user-provided video content over the Internet – from job interviews, to family gatherings, to films by aspiring filmmakers. Id.
The applicable law here was the DMCA. Enacted in 1998, the DMCA was “designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.” Id., pp. 10-11, citing S. Rep. No. 105-190, at 1-2 (1998). “Difficult and controversial questions of copyright liability in the online world prompted Congress to enact Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act (OCILLA).” Id., citing Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).
Specifically, OCILLA enables qualifying service providers to limit their liability for claimed copyright infringement under four “safe harbors.” Id., referring to 17 U.S.C. § 512(a)-(d). “These safe harbors provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” Id, citing Ellison, 357 F.3d at 1076-77.
To avail itself of any of the four safe harbors, Veoh must first satisfy certain threshold requirements. That is, it must be a “service provider,” and it must adopt, reasonably implement and inform subscribers of a policy providing that it may, in appropriate circumstances, terminate the accounts of repeat infringers. Id., p. 12, referring to 17 U.S.C. § 512(i)(1)(A) and § 512(k) ; Ellison, 357 F.3d at 1080.
Here, the uncontroverted evidence showed that Veoh (a) has a working notification system, (b) has a procedure for dealing with DMCA-compliant notifications, and (c) does not actively prevent copyright owners from collecting information necessary to issue such notices. Plaintiff says that defendant does not qualify for safe harbor because it does not track infringers. However, Veoh does track content that has been identified as infringing and permanently blocks that content from ever being uploaded by any user. Id., p. 16.
Accordingly, the District Court found that Veoh presented evidence that it satisfied the threshold requirements to qualify for safe harbor under the DMCA. Id. IO did not present evidence raising a genuine issue of material fact as to whether Veoh implemented its repeat infringer policy in a reasonable manner. Id.
Going over to the question whether Veoh qualifies for safe harbor under Section 512(c), the District Court answered it in the affirmative.
In particular, the District Court stated that Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh’s users. Id., p. 20, referring to The Cartoon Network LP, LLP v. CSC Holdings, Inc., — F.3d —, Nos. 07-1480-cv(L), 07-1511-cv(CON), 2008 WL 2952614 at *9 (2d Cir., Aug. 4, 2008). There was no evidence that Veoh can control what content users choose to upload before it is uploaded. Id., p. 28. And, there was no evidence that Veoh can control what content users choose to upload before it is uploaded. Id.
On top of that, the record presented showed that Veoh has taken down blatantly infringing content, promptly responds to infringement notices, terminates infringing content on its system and its users’ hard drives (and prevents that same content from being uploaded again), and terminates the accounts of repeat offenders. Id., p. 29, referring to Dunning Decl. ¶¶ 10-13; Scherb Decl. Ex. C (Papa Depo., Vol.1, 98:3-7).
Once content has been identified as infringing, Veoh’s digital fingerprint technology also prevents the same infringing content from ever being uploaded again. All of this indicated that Veoh has taken steps to reduce, not foster, the incidence of copyright infringement on its website. Id.
On the basis of the foregoing, the District Court granted Veoh’s motion for summary judgment.
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