Attorneys representing online video sites around the country are salivating today over the Veoh summary judgment decision (I know this because I’ve spoken to a few of them). In a nutshell, here’s what we learned today: If you take reasonable precautions against copyrighted materials on your service, you may be ok. And oh yeah, if you are going to get sued, try to get sued in federal court in northern California, because the judges there are a lot more Internet-friendly than some other federal judges we’ve seen.
Specifically, the court said that online video sites are protected under the safe harbor provisions of the DMCA if they do the following (my interpretation of the decision):
- Provide adequate notice to users that uploading copyrighted material is prohibited
- Swiftly comply with DMCA takedown notices “on the same day the notice is received (or within a few days thereafter).”
- Use fingerprinting and other technology to detect copyrighted material, even if the methods are flawed.
- Take measures to control infringing users. Specifically, infringing accounts need to be terminated and the email banned from any new accounts. The court held that IP address banning was not neccesary: “…Io has presented no evidence suggesting that tracking (or verifying) users’ actual identity or that blocking their IP addresses is a more effective reasonable means of implementation.”
- Transcoding files to Flash format does not put the files in the site’s control; they are still protected by the DMCA safe harbor (see previous post).
- Sites are encouraged to spot check videos, and if they do, to remove content that is likely infringing.
- Sites are NOT required to check every video. The court said “this court finds no reasonable juror could conclude that a comprehensive review of every file would be feasible. Even if such a review were feasible, there is no assurance that Veoh could have accurately identified the infringing content in question.”
- It’s important to have lots of non-infringing content. The court noted that Veoh had received DMCA notices on only about 7% of its content. This helped its argument that it was different than Napster, which “existed solely to provide the site and facilities for copyright infringement…the sole purpose of the Napster program was to provide a forum for easy copyright infringement.”
YouTube, which is obviously thrilled with the decision, emailed us the following statement to us from Chief Counsel Zahavah Levine:
It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights. YouTube has gone above and beyond the law to protect content owners while empowering people to communicate and share their experiences online. We work every day to give content owners choices about whether to take down, leave up, or even earn revenue from their videos, and we are developing state-of-the-art tools to let them do that even better.
The statement by the court that checking every video for infringement isn’t realistic is an important one for Google/YouTube, which has said 13 hours of video content is uploaded every minute on YouTube. If it’s impossible for Veoh to monitor all content, YouTube is going to have an order-of-magnitude larger problem.
Before the parties break out, it’s important to note that this is a district court decision and will very likely be appealed. I imagine YouTube may be lending one or ten of its lawyers to Veoh to assist in that appeal in any way possible.
But this is still a key ruling and one likely to impact the YouTube-Viacom $1 billion ongoing litigation as well as a slew of other cases.
The full order is included below.
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Whichever way this ruling could have went, the loser gets a real short stick. Is the copyright holder supposed to monitor all the hundreds of video sites the copyright holder’s content could be on? How is *that* possible?
It’s no more impossible than the copyright holder monitoring the hundreds of millions of people who might make copies at any given time, online or offline.
This burden has always rested squarely on the copyright holder’s shoulders.
I completely agree with Lucas. Anyone who is familiar with copyright laws knows that it is totally the responsibility of the copyright holder to monitor and notify others of infringement.
I think the ruling is great. Even better, I think it would be great for the video sites to really work with copyright holders to give them the type of options that YouTube says they are working on. It makes a lot more sense to embrase your content’s popularity than to punish others for being enthusiastic about what you’ve created.
As someone who is in the process of developing a video-sharing site, a ruling such as this makes me more comfortable than I was even a few days ago in regards to legal, and illegal, videos.
Nice! but Veoh is still an ass as they closed any access to their website from here. (I’m in Indonesia)
Yeah , that i agree . ” We are closing down here becuase of the low concentration of users “
This could be a very interesting ruling.
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Interesting stuff here!
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“It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights.”
That’s hilarious. Youtube is built on copyright infringing content.
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Interesting and welcome ruling.
A copyright holder does NOT have to worry about their content showing up on hundreds of video-sharing websites for one simple reason:
Traffic levels
I own the copyright to some videos that have been uploaded around the web but I could careless about the small sites that have relatively little traffic because I am not losing much and I am gaining far more in marketing for my brand.
I limit my concerns to sites that are popular or semi-popular.
I also LOVE YouTube’s option for me to earn revenue from my content that is uploaded by someone else instead of taking it down. The person put it up because they liked it and wanted to share it, not because they wanted to rip me off.
Leveraging that kind of brand evangelism is far smarter.
Well said, David. See my previous comments: “It makes a lot more sense to embrase your content’s popularity than to punish others for being enthusiastic about what you’ve created.”
It seems like a judge finally decided to use a little common sense instead of listening to the MPAA and RIAA go on and on about the archaic copyright laws on the books
Good point David. Imitation and reproduction are the sincerest form of flattery and the viral spread of your message. I would love it if I had tons of fans who mash-up all my videos. As long as all the video serving sites help the copyright holders continue to monetize that which has been replicated, everybody wins.
Obviously, the big media companies stand to lose the most here. Viacom’s bread and butter comes in controlling distribution outlets and charging premium CPMs for ad time. YouTube and others offer pennies on the dollar so Viacom won’t get very far if half it’s Jon Stweart Audience were watching on YouTube.
Youtube is built on copyright infringement -> agreed yet the adsense team loves to shutdown sites that host links to copyright content that is hosted on it! Double standards.
Is copyright infringement laws only protect the big boys. The small players always lose out.
I’m an IP attorney and I think you’re reading far too much into this.
Summary judgments are often overturned on appeal and I doubt this will have much impact on the YouTube lawsuit for a number of reasons.
In this case the plaintiff did not even provide notification under the DMCA and that was very problematic and made the claims less believable because there was no way Veoh could have had knowledge of the infringement.
In the YouTube case it is going to be difficult for YouTube to argue that it didn’t have actual and constructive knowledge of the infringement because it has been sent hundreds of thousands of takedown notices and has interacted directly with plaintiffs on the issue of copyright infringement.
There is no real precedent set here. District court opinions are frequently corrected or dismissed entirely at the appellate level. So saying that a magistrate judge in California district court believes transcoding isn’t a big deal does not mean that an appellate court or the Supreme Court won’t disagree upon a more complete evaluation of the issue.
Attorneys representing online video websites will salivate once there are appellate level rulings (or a Supreme Court ruling).
Everybody looking at this should remember that the 9th Circuit Court of Appeals in August 2004 ruled in favor of Grokster as part of the MGM/RIAA/MPAA suit against it.
That ruling was overturned by the Supreme Court so any attorney resting their hopes on a summary judgment from a MAGISTRATE judge is insane.
fine, but given that the DMCA says quite plainly that, once notified, if you follow reasonable steps to remove infringing material (like those outlined in the OP) and you register as an ISP, you will have Safe Harbor, I’m not looking for a reversal here.
Given that list of requirements, I’m not all that excited:
“Take measures to control infringing users. Specifically, infringing accounts need to be terminated and the email banned from any new accounts.”
At what point? On the first infringement? After 10?
“Sites are encouraged to spot check videos, and if they do, to remove content that is likely infringing.”
“Likely” based on what? Maybe I actually DO own the rights. Or maybe what I’ve put up is permitted under Fair Use. It’s too broad.
Maybe the ambiguities are good, though - it leaves room for these sites to comply without being overly aggressive. But I worry that they might go the other way instead.
Fred von Lohmann from EFF here. While I agree with much of Michael’s analysis, I think he’s wrong when he says “Use fingerprinting and other technology to detect copyrighted material, even if the methods are flawed.” Veoh had no such filters (other than hashing for material previously removed) and the court gave them a free pass.
So while the entertainment industries may be pushing for fingerprinting and filtering, there’s nothing in the DMCA that requires it.
fred, thanks for the concise analysis and all of the good work that the EFF does!
this ruling could really have a huge impact on the future of the online video and music industries
I like the part where it says that Napster’s sole purpose was to infringe on copyright. I love revisionist history.