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ISP gets DMCA win in USA

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The Ninth Circuit has affirmed the trial court’s summary dismissal of UMG copyright claims against Veoh on the basis of §512(c) – the ‘hosting’ safe harbour. UMG argued 3 reasons why §512(c) did not apply:

First, UMG argues that the alleged infringingactivities do not fall within the plain meaning of “infringe-ment of copyright by reason of the storage [of material] at thedirection of a user,” a threshold requirement under§ 512(c)(1). Second, UMG argues that genuine issues of factremain about whether Veoh had actual knowledge of infringe-ment, or was “aware of facts or circumstances from whichinfringing activity [wa]s apparent” under § 512(c)(1)(A).Finally, UMG argues that it presented sufficient evidence thatVeoh “receive[d] a financial benefit directly attributable to. . . infringing activity” that it had the right and ability to control under § 512(c)(1)(B). We disagree on each count, andaccordingly we affirm the district court.

Each of these requirements has a counterpart in our US Free Trade Agreement ‘inspired’ – see s 116AH items 1 and 4 and therefore should repay consideration.

On the knowledge / awareness point:

At [11], Judge Fisher noted that UMG had not notified Veoh of any infringing material under the DMCA before commencing proceedings. After noting at [12] that Congress placed the burden of policing infringements on copyright holders, Judge Fisher continued at [13]:

[13] UMG asks us to change course with regard to§ 512(c)(1)(A) by adopting a broad conception of the knowl-edge requirement. We see no principled basis for doing so.We therefore hold that merely hosting a category of copy-rightable content, such as music videos, with the generalknowledge that one’s services could be used to share infring-ing material, is insufficient to meet the actual knowledgerequirement under § 512(c)(1)(A)(i).
Then at [14], Judge Fisher rejected UMG’s arguments that Veoh should be held to have sufficient awareness of infringing activity:
…. For the same reasons, we hold that Veoh’s general knowledge that it hosted copyright-able material and that its services could be used for infringe-ment is insufficient to constitute a red flag.
In Section 2, Judge Fisher dismissed UMG’s other evidence of awareness. One point of interest was that an email from Michael Eisner CEO of Disney would have been sufficient if from a third party, but was rejected since it was from a copyright holder and did not follow the DMCA process.

The 1709 blog has a good summary and links here.

As Techdirt points out, however, the costs of the litigation drove Veoh out of business.

Next up, presumably, the Ninth Circuit’s decision in the appeal from Viacom v Youtube.

Although, as noted above, the decision has potential ramifications for the corresponding Australian provision, I am not convinced it has much to say on Roadshow v iiNet (which concerned Category A activity, not Category C anyway) where the AFACT Notices seemed to provide specific notice (once properly explained).

UMG Recording Inc v Shelter Capital Partners LLC., Case: 09-55902, 9th Cir. December 20, 2011

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Viacom v YouTube: a decision

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District Court Judge Stanton has granted YouTube summary judgment in Viacom’s action for copyright infringement.

The judge’s opinion is here (pdf).

Prof. Goldman provides an initial summary here.

As Prof. Goldman notes, Viacom will presumably seek to appeal.

Given the provenance of our own limited “safe harbours” in the US DMCA via the US Free Trade Agreement, nonetheless, the decision should repay consideration in the Australian context.

On a general note, Judge Stanton distinguished YouTube’s position from Grokster, finding:

It is not remotely the case that You Tube exists “solely to provide the site and facilities for copyright infringement.” . Even the plaintiffs do not (and could not) suggest as much. Indeed, they have repeatedly acknowledged the contrary.
The Grokster model does not comport with that of a service provider who furnishes a platform on which its users
post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes. To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law.

While that is made in the context of the DMCA “safe harbour” defences, the point should be well worth bearing in mind when the Full Court comes to decide the iiNet appeal.

Viacom International Inc. v YouTube Inc

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YouTube and IP

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Indications are that Universal Music is now making “tens of millions of dollars” from the use of its music on YouTube.

Slightly different outcome to the apparently stalled Viacom approach to social networking sites?

Concurrently, there are newspaper reports that the RIAA, famously suing grandparents and 12 years olds, may be changing its litigation strategy.

Howard Knopf worries that this might be because “sweet heart” deals are being reached with ISPs. Anyone want to sue, say, iiNet?

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