Out-Law News 4 min. read
02 Sep 2008, 2:47 pm
The ruling could be good news for other sites which accept user-published material. YouTube is currently fighting a law suit brought by media conglomerate Viacom, which claims that YouTube's entire business is based on piracy in contravention of US copyright laws.
Veoh is an online video site which allows people to post videos for others to watch. It was sued by Io, a maker of pornographic films.
The US Digital Millennium Copyright Act (DMCA) says that publishers can be granted exemption, or safe harbour, from its provisions if they are only facilitating another's publication of infringing material and are not actively publishing it themselves, and if they have and use procedures for the swift take-down of infringing material they are informed about.
The US District Court for the Northern District of California found that Veoh does have adequate notice and take-down procedures for alleged infringements and even has a designated copyright agent to deal with requests for take-down.
Judge Howard Lloyd said that Veoh is not liable for damages in relation to the Io films posted by users because it did enough in the normal course of its business to act on complaints of copyright infringement.
When Io saw that a number of films of between six seconds and forty minutes in length were posted by users to Veoh's site, it did not use the normal Veoh processes for dealing with copyright-infringing material. Instead it went straight to the courts, and the first that Veoh knew about the issue was when it was informed of the court action.
In order to qualify for the safe harbour protection, the DMCA requires a site to have reasonably implemented a "a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers".
Io said that while Veoh had a policy which meant to do this, it did not succeed because repeat infringers could re-register with a new email address and post material. This, it said, disqualified Veoh from protection.
Judge Lloyd did not accept that argument. "Io contends that Veoh fails to reasonably track repeat infringers and that its repeat infringer policy is tantamount to no policy at all. This court disagrees," he said in his ruling.
"Section 512(i) [of the DMCA] does not require service providers to track users in a particular way to or affirmatively police users for evidence of repeat infringement," said Lloyd. "Instead, '[a] policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement'."
To qualify for safe harbour protection, a publisher must also have and operate a policy of notice and takedown. It must respond quickly to any notice that is has allowed users to publish infringing material. Lloyd said that Veoh did do that.
"Undisputed evidence submitted by Veoh shows that when it receives DMCA-compliant notice of copyright infringement, it responds and removes noticed content as necessary on the same day the notice is received (or within a few days thereafter)," he said.
Though safe harbour is usually reserved for publishers who take not editorial part in user-generated content, the court heard that Veoh did 'spot-check' videos for the correct categorisation and for any examples of blatant copyright infringement, but the court did not find that this undermined its right to safe harbour.
The court found that Veoh processed so much material every day that analysing every file would be impossible. It also found that since the videos in question did not contain an indication that their copyrights were owned by Io, there would not even necessarily be a way for Veoh to identify them as infringing files.
Io said that if Veoh did not have enough staff to check every video it should hire more staff or reduce the amount it publishes. The court also rejected that suggestion.
"Its not-so-subtle suggestion is that, if Veoh cannot prevent infringement from ever occurring, then it should not be allowed to exist," said Lloyd's ruling.
"The DMCA does not require service providers to deal with infringers in a particular way … plaintiff’s suggestion that Veoh must be required to reduce or limit its business operations is contrary to one of the stated goals of the DMCA. The DMCA was intended to facilitate the growth of electronic commerce, not squelch it," he said.
The court found that Veoh is protected from liability for damages. The DMCA safe harbour does not protect it from the limited ability to injunct that Io would have. But because Veoh has removed all adult material from the site as a matter of policy since the case started, there is nothing there to injunct, the judge said.
Lloyd said that the issues in question were difficult ones, but that the court had to reward a company which tried to do the right thing.
"The ever expanding realm of the Internet provides many new ways for people to connect with one another. This court appreciates that these new opportunities also present new challenges to the protection of copyright in the online world," he said.
"The court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its website (at the cost of losing its business if it cannot). Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place."
"The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website."
