Commentary
DMCA Protects Veoh, But May Not Help Smaller Sites
- by Wendy Davis , Staff Writer @wendyndavis, September 15, 2009
U.S. District Court Judge A. Howard Matz in Los Angeles dismissed a lawsuit brought by Universal Music Group against video sharing site Veoh. Matz ruled that the DMCA's safe harbor provisions protect Veoh from liability. The decision marked the second major victory for Veoh, which also defeated a copyright infringement lawsuit by adult entertainment company Io Group.
The safe harbors generally state that sites are immune from copyright infringement liability as long as they remove pirated material upon request. But there are exceptions. One applies when sites know they host infringing material.
Universal, which has vowed to appeal the ruling, argued that Veoh shouldn't be protected by the safe harbors. But Matz disagreed, finding that Veoh removed videos upon request and that there was no evidence that the company knowingly allowed pirated clips to remain on the site.
These same arguments are also playing out in New York, where Viacom (and other companies) are suing Google's YouTube for copyright infringement. While federal judges in New York need not follow holdings by judges in California, and while all lawsuits obviously involve unique facts, the rulings in Veoh's favor certainly seem likely to help Google.
Electronic Frontier Foundation lawyer Fred von Lohmann says the ruling "is likely to prove influential in the pending lawsuits against YouTube." He notes that Matz specifically approved of Veoh's anti-infringement initiatives, which seem similar to those used by YouTube. Among others, Veoh uses filtering technology by Audible Magic and terminates accounts of users who continue to upload pirated clips after receiving a warning.
But, while Matz's endorsement of those policies is good for Veoh, and probably also YouTube, it could be problematic for smaller companies that don't use similar anti-infringement strategies. In fact, it now seems entirely possible that bigger companies with aggressive policies will end up getting the benefit of safe harbors while the smallest sites -- those, say, run by college kid in a dorm room -- won't.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
To avoid furthering a common misconception, it should be noted that the DMCA Section 512(c) safe harbor provisions apply only to material that is stored by or for a site “at the direction of a user.” I often find myself counseling misinformed clients who believe that material created or otherwise provided by them on their sites is subject to the 512(c) safe harbors when it is not. I often hear “we’re not liable for copyright infringement for material we post if we take it down when we receive notice, right?” Well, the answer is the 512(c) safe harbors do not apply and you do not get past go if the allegedly infringing content is not stored “at the direction of a user.”
Having read many of her informative articles, I appreciate that Ms. Davis knows this and did not intend to mislead readers by stating “[t]he safe harbors generally state that sites are immune from copyright infringement liability as long as they remove pirated material upon request.”
Thanks for your informative articles, Wendy.