Court Finds that File-Sharing Site Can Be Entitled to DMCA Safe Harbor

4 Oct 2015 By Leave a Comment

In another case involving Veoh.com, a federal judge has again rebuffed an attempt by a copyright-holder to claim that the safe harbors of the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 512) do not protect the video file-sharing site.UMG Recordings, Inc. v. Veoh Networks, Inc., 2008 WL 5423841 (C.D. Cal. 2008).

The Veoh website includes videos supplied by Veoh’s content partners and permits visitors to access large library of commercial television shows and movies. Veoh also permits users to upload their own video content. While Veoh has policies against uploading copyrighted material, copyright holders have alleged that users can, at least temporarily, circumvent Veoh’s measures — with the result that copyrighted music and videos are distributed to other users.

In response to suits from such copyright holders, Veoh has claimed qualified immunity under the DMCA. The DMCA, provides several safe harbors for digital media service providers, including limited immunity for infringing information “residing on systems or networks at direction of users.” (fn1)

In UMG Recordings v. Veoh, copyright holder UMG Recordings, Inc. claimed that Veoh cannot take advantage of this safe harbor because Veoh performs several functions on user-uploaded videos that are not “storage” and are not “undertaken at the direction of a user.” (fn2) These included: (1) creating “Flash-formatted” copies of the uploaded videos; (2) creating “chunked” versions of the uploaded videos; (3) allowing users to access videos via streaming; and (4) allowing users to download whole video files.

In his December 28, 2008 ruling, the judge started with the key assumption that all the activities cited by UMG amounted to “software functions directed toward facilitating access to materials stored at the direction of users.” (fn3) Then, focusing on the precise wording of the DMCA, the judge noted that the provision of the DMCA in question — 17 USC §512(c) — doesn’t state that safe harbor protection is only available for “storing” information. Rather Section 512(c) states that limited immunity is available for infringement “by reason of” or “as a result of” such storage. The judge stated that “when copyrighted material is displayed or distributed on Veoh, it is ‘as a result of’ or ‘attributable to’ the fact that users uploaded the content to Veoh’s servers.” (fn4)

 

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Court Split Widens over Whether DMCA Rules against Removal of Copyright

10 May 2015 By Leave a Comment

Among the anti-circumvention rules in the Digital Millennium Copyright Act (DMCA) are prohibitions against the removal or alteration of “copyright management information.” (17 USC §1202). While the popular understanding of the DMCA is that its provisions are specifically targeted to digital media, the definition of “copyright management information” appears very broad and includes:

• The title and other information identifying a work, including the information set forth in a notice of copyright.
• The name(s) and other identifying information of the author, owner and/or performer of the work.
• Terms and conditions for use of the work, and
• Identifying numbers or symbols referring to such information or links to such information.

At face value, nothing about these definitions appears to limit “copyright management information” to digital or other electronic information. However, the earliest District Court cases decided that Congress had intended to limit this provision to “automated copyright management systems functioning within a computer network environment.” IQ Group, Ltd. v. Wiesner Publishing, LLC, 409 F.Supp.2d 587, 596 (D. New Jersey 2006); Textile Secrets International, Inc. v. Ya-Ya Brand Inc., 524 F.Supp.2d 1184 (C.D. Cal. 2007). Among technological measures that these decisions indicated would qualify under this standard were electronic envelopes and digital watermarks. This interpretation was followed, without significant comment, in another recent Southern District of New York decision. See Silver v. Lavandeira, Southern District of New York, 08 Civ. 6522 (JSR) (January 7, 2009 Magistrate’s Report and Recommendation).

That early trend is meeting some resistance. In March 2007, a court in the Western District of Pennsylvania held that Section 1202(c) defines “copyright management information” broadly to include “any” of the information set forth in its defined categories, whether digital or not. McClatchey v. Associated Press, 2007 WL 776103 (W.D. Pa. 2007). This meant that cropping the title, author’s name and copyright notice on printouts of photographs could violate this provision of the DMCA. In February 2009, directly rejecting the IQ Group and Textile Secrets rulings, a court in the Southern District of New York stated that the phrase “the technological measures of automated systems” is not found in the statute. As such, it found that the statute could cover manual removal of copyright information. See Associated Press v. All Headline News Corp., Southern District of New York, 08 Civ. 323 (PKC) (February 17, 2009 Memorandum and Order).

It is too early to tell how this split will be resolved. If the broader view of the statute is accepted, it could substantially change the requirements even for fair use of copyrighted information. Under the statute removal or alteration of copyright information is prohibited “without the authority of the copyright owner or law” — without exception. Section 1202(b).

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Controlling Discovery in Digital Media Cases: Lessons from the Viacom Suit Against YouTube/Google

24 Apr 2015 By Leave a Comment

Since entering its discovery phase, formal courtroom proceedings in Viacom’s copyright infringement suit against YouTube and Google have substantially quieted down. Press reports suggest that the lull in public proceedings may be due to settlement efforts. However, the nature of this case suggests that the parties’ discovery burdens could be substantial and causing a slowdown.

Viacom’s claim in this suit is that YouTube had permitted over 150,000 clips of Viacom-owned content, such as clips from “SpongeBob SquarePants”, “SouthPark” or “The Daily Show with Jon Stewart” to be uploaded and viewed by users. According to Viacom’s complaint, its copyrighted material has been viewed on YouTube “an astounding 1.5 billion times.” Raising both direct and indirect infringement theories, Viacom claimed that YouTube had created an environment that “promotes” and “induces” copyright infringement.

YouTube and Google’s primary response was that their actions were protected by the Digital Millennium Copyright Act (DMCA). According to YouTube’s Answer, “YouTube . . . fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works.”

In two recent suits, a similar internet file-sharing service, Veoh, has prevailed at summary judgment using the DMCA safe-harbor defense that the infringing material was “information residing on systems or networks at direction of users.” 17 U.S.C. §512(c); see IO Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D. Cal. 2008); UMG Recordings, Inc. v. Veoh Networks, Inc., 2008 WL 5423841 (C.D.Cal. 2008). YouTube may also prevail in its case against Viacom. However, this does not mean that sailing will be smooth for YouTube.

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