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.