Veoh argued that it was protected from liability by section 512(c).
Io noted that section 512(c)’s safe harbor applies only to infringing material that third parties have put onto a defendant’s system. In this case, Veoh
took the clips uploaded by users, automatically copied them into a different format (suitable for online viewing), and put these infringing copies
onto its website. Thus, Io argued, section 512(c) did not immunize Veoh
against liability for the copies that the company had itself made and posted
on its site.
The U.S. District Court for the Northern District of California disagreed.
Because Veoh had no volitional control over its automatic copying and posting of uploaded material, the court said, the company could not be held responsible for these actions. Veoh’s users, not Veoh, were the ones responsible
for copying the clips and putting them onto Veoh’s website. Thus, section
512(c) protected Veoh against copyright liability for those clips.
Io offered another argument: A service provider loses the protection of the
section 512(c) safe harbor if the provider has the right and ability to control
the infringing activity, and receives a financial benefit directly attributable
to such activity. Io claimed that Veoh had the right and the ability to control
the infringing activity on its website, and that Veoh profited from its users
posting and viewing the infringing clips.
The court rejected this argument, too. Judge Howard R. Lloyd held that
although Veoh had the ability to control its own system, it did not have the
ability to control the infringing activity. He concluded that the DMCA protects online companies like Veoh that work in good faith to limit copyright
infringements committed by their users.
Many online companies have cheered Io. But it is unclear how much this
will help You Tube and other service providers because Io provides no clear
guidelines for determining when copyright infringements are beyond a service provider’s control.
How hard must a service provider work to stop infringements, in order to
prove the provider is unable to control any infringing material that is put on
its service by users? On one hand, Io appears to indicate that a good-faith
effort to stop infringement may be
“The court does not find that the
DMCA was intended to have Veoh
shoulder the entire burden of policing third-party copyrights on its web-site (at the cost of losing its business
if it cannot). Rather, the issue is whether Veoh takes appropriate steps to deal
with copyright infringement that takes
place. The record presented demonstrates that, far from encouraging
copyright infringement, Veoh has a
strong DMCA policy, takes active
steps to limit incidents of infringement on its website, and works diligently to keep unauthorized works
off its website. In sum, Veoh has met
its burden in establishing its entitlement to safe harbor for the alleged
infringements here.” [Emphasis
On the other hand, Io contains
language suggesting that a service
provider must do everything it reasonably can to stop infringements:
“Perhaps most importantly, there is
no indication that Veoh has failed to
police its system to the fullest extent permitted by its architecture.”
One of Viacom’s allegations is that
You Tube is not policing its system as
thoroughly as it can. According to
Viacom’s complaint, You Tube has filtering technology that can identify
and possibly remove copyrighted
material, but this technology is used
to protect only works that are licensed
to appear on You Tube—such as music videos of Sony BMG artists, clips
from HBO shows and segments from
MGM movies. Unlicensed works
don’t benefit from this technology,
and their copyright owners thus face
a flood of infringing posts.
“Viacom’s claim is that YouTube is
not policing its system to the fullest
extent permitted by its architecture,
and in fact is holding some tools
back as a bargaining chip [to force
copyright owners to license their
works to You Tube],” Bruce Boyden,
a professor of IP law at Marquette
University, has written in his blog.
“To the extent Io and other decisions are holding that, to preserve its
DMCA immunity, an ISP has to police its system to the best of its abilities, You Tube may be in trouble.”
If the courts eventually determine