The U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of a defendant “video-sharing” website, holding that defendant is protected from liability for copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). UMG Recordings, Inc., et al. v. Veoh Networks, Inc., Case No. 10-55732 (9th Cir., Dec. 20, 2011) (Fisher J.)
Defendant Veoh Networks operates a publicly accessible video-sharing website. Plaintiff UMG, one of the world’s largest recorded music and music publishing companies, and other copyright owners sued Veoh for copyright infringement. Despite the various procedures implemented by Veoh on its website to prevent copyright infringement, videos containing songs for which the plaintiffs own the copyright had been posted on Veoh’s site. Veoh asserted as an affirmative defense that it is protected by the DMCA’s safe harbor provisions, contained in 17 USC § 512(c). The district court agreed and granted summary judgment in Veoh’s favor. UMG appealed.
On appeal, UMG argued that because Veoh facilitated access to videos maintained on its system, it was not protected by the safe harbor because the alleged infringing activity was not “infringement by reason of the storage of material at the direction of a user,” a threshold requirement under section 512(c). The 9th Circuit rejected this argument, concluding that the phrase “by reason of the storage at the direction of the user” covers “more than mere electronic storage lockers,” and that “§ 512(c) encompasses the access-facilitating processes that automatically occur when a user uploads a video to [defendant’s] website.”
UMG further argued that the safe harbor protections were not available to Veoh because Veoh had actual knowledge of the infringing activity. The 9th Circuit held that Veoh’s general knowledge that its services could be used to post infringing material was insufficient to demonstrate actual knowledge of infringement. Instead, the court held that a service provider must have specific knowledge of particular infringing activity to be ineligible for safe harbor protection. “[M]erely hosting a category of copyrightable content … with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement.”
The court also rejected the contention that Veoh was not entitled to the protections of the safe harbor because it was aware of facts and circumstances from which infringing activity was apparent. The evidence cited by UMG in support of this argument included Veoh’s removal of infringing content from its website and evidence that the existence of infringing content on its website had been brought to Veoh’s attention. Citing its holding in CCBill that the burden of policing copyright infringement rests with copyright owners, not service providers, the court found this evidence insufficient to render the safe harbor protections unavailable. Noting that the notice and take-down procedures contained in the DMCA (of which UMG notably did not avail themselves) assumes that some infringing material will end up on service providers’ websites, the court found that Veoh’s knowledge that some infringing material had been placed on its website was insufficient to render the safe harbor protections unavailable.
Practice Note: Copyright owners should be advised to monitor content-sharing websites and follow the notice and take-down procedures of the DCMA to demand the removal of infringing material. They cannot rely on service providers—who are likely shielded from liability for copyright infringement—to do so for them.