DMCA protected video site Veoh from infringement, court rules

When a Web site takes reasonable measures to prevent the distribution of unauthorized videos, it's protected from infringement of copyright. That's the finding once again in another case against another of the "other" video sites, Veoh, which has been taken to court before and which has prevailed before.

This time, Universal Music Group alleged that Veoh did not do all that it could to prevent the spread of music videos uploaded by individuals, containing music belonging to UMG's portfolio. In a ruling in US District Court for Central California today, Judge A. Howard Matz upheld a lower court's finding, and sided with findings in other cases against Veoh. In a summary judgment requested by Veoh, the court ruled that it's protected by the "safe harbor" provision of the Digital Millennium Copyright Act.

The safe harbor provision protects a service provider from liability when it hosts files uploaded by individuals, and that can be downloaded by individuals, and when it takes reasonable measures to prevent unauthorized or copyrighted videos from being displayed or traded. What's "reasonable" in this instance? No one denied that Veoh acted to remove the videos in question soon after UMG notified it. But UMG thought Veoh should have banned the users who uploaded it, to prevent future trafficking of authorized content.

"UMG first asserts that Veoh had actual knowledge of infringement because it 'knew that it was hosting an entire category of content -- music -- that was subject to copyright protection.' If merely hosting user-contributed material capable of copyright protection were enough to impute actual knowledge to a service provider, the [DMCA] section 512(c) safe harbor would be a dead letter because vast portions of content on the Internet are eligible for copyright protection," reads Judge Matz' finding today. "UMG's theory would also make the DMCA's notice-and-takedown provisions completely superfluous because any service provider that hosted copyrighted material would be disqualified from the section 512(c) safe harbor regardless of whether the copyright holder gave notice or whether the service provider otherwise acquired actual or constructive knowledge of specific infringements."

The copyright holder for music had argued that the nature of the videos themselves should have given Veoh a clue that they were owned by somebody, and that they shouldn't have belonged there. But Veoh employed a content filter, called Audible Magic, which did alert Veoh to some offending content -- a filter which the court ruled qualified as "reasonable means" to prevent infringement. And the fact that the filter didn't work well was actually made by UMG's expert, not Veoh's -- a fact that played in Veoh's favor, helping to explain why Veoh could not be automatically aware of offending content the moment it was uploaded.

UMG then argued that Veoh had a duty to stop repeat offenders by terminating their accounts. But Judge Matz cited the case of Perfect 10, a publisher of nude photography picked up by Microsoft's search engine, in determining that a service provider does not have to take that drastic a step -- conceivably infringing upon individuals' free speech rights -- unless that service provider wishes to claim it is acting in the direct interests of the content publisher. And here, Veoh is under no obligation to act "in the name of" UMG.

Citing more case law, the judge wrote that a DMCA takedown notice is not, in and of itself, evidence of copyright violation; and thus the drastic step of terminating an account need not be taken by Veoh simply on the basis of the notice's mere existence. Citing another DMCA case involving digital photo library Corbis, he added, "'A copyright owner may have a good faith believe that her work is being infringed, but may still be wrong.'... For that reason, [the court in] Corbis found that notices of infringement 'did not, in themselves, provide evidence of blatant copyright infringement' sufficient to justify terminating a user's account."

UMG wanted to use the landmark ruling against the original Napster as precedent for determining a video service provider's responsibility under the law. That ruling appeared to make it clear that if an ISP or a service host could use its technology to police users, then it must -- and the very existence of that technology would then underscore that obligation.

But in a very risky move, Judge Matz acknowledged that the Napster ruling ended up contradicting the DMCA, which was a law passed by Congress -- and therefore, the latter prevailed.

"In particular, UMG urges this Court to follow two principles from Napster: (1) 'The ability to block infringers' access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise.'...and (2) 'To escape imposition of vicarious liability, the reserved right to police must be exercised to its fullest extent.' But it is apparent from the structure of the DMCA that what constitutes 'control' for purposes of the DMCA safe harbors requires its own statutory analysis. If the Court adopted principle (1) from Napster it would render the statutory phrase 'right and ability to control' redundant, because the 'ability to block infringers' access for any reason whatsoever' is already a prerequisite to satisfying the requirements of section 512(i)(1)(A)," the judge wrote. "If the Court adopted principle (2), it would run afoul of section 512(m), which states explicitly that nothing in section 512 shall be construed to condition the safe harbors on 'a service provider monitoring its service or affirmatively seeking facts indicating infringing activity...'"

At present, Veoh is making inroads as a host for TV-oriented content from producers such as CBS and Showtime, and YouTube-style hosting for individuals is now a minor portion of its catalog.