As technology changes and the uses of media evolve into unforeseen territories, questions about legal feasibility and permissible behavior invariable arise. It’s a battle that often pits content owners against content distributors. It’s issues of fair usage, of reasonable protection and questions about levels of professional responsibility.
What can be shown?
What can be copied?
How much effort does a company have to make to police customer behavior?
What are “reasonable” standards?
It’s the courts’ unenviable job to interpret the often vague, and complex, nuance of law written before the very innovations in question were even contemplated. It’s their job to figure it all out.
Slowly but surely, judges are working through the process. So far: remote storage DVRs have been allowed, it’s been affirmed that copyright laws can be applied to open source (shareware, freeware etc) software, and online sellers have been given some protection against the need to monitor their services for fraudulent products. Now, in the latest twist, Copyright Safeguards in the DMCA have been affirmed too. Hosting websites, under certain conditions (the conditions being the key), are not responsible for copyright infringement triggered by people submitting content to their site.
In the original case, which was filed in 2006, IO Group, makers of adult videos, sued Veoh after finding at least ten instances of their copyrighted video hosted on Veoh’s site without IO’s approval. When IO noticed the infringement they did not contact Veoh and request the material be removed. Instead, they immediately filed a lawsuit. (Interestingly, by the time the lawsuit was filed, Veoh had decided not to offer adult content through their service so the offending material had been removed. The case continued despite the fact that the alleged infringing behavior had been voluntarily corrected).
Veoh defended itself with the claim that they were in compliance with the DMCA.
Applying standards set in the case of Napster and Grokster, the court looked at Veoh’s business and considered how much of the volume of material on the website was in violation of copyright. Had it been a majority, as was the case with Napster, Veoh might have been considered complicit; its service deemed to serve no legitimate purpose. That wasn’t the case. In fact, it was the opposite. The bulk of Veoh’s content was not in violation of any copyright.
Based on that fact, and largely because Veoh’s behavior also followed guidelines set out in the Digital Millennium Copyright Act ( 17 U.S.C. Sec 512). Veoh escaped victorious with the court determining Veoh was within the bounds of legal “safe harbors.”
The ruling is important on multiple grounds. On a most basic level, it affirmed the safeguard provisions of the DMCA apply and clarified where those safeguards may be applied. The ruling also concluded that automatic software transcoding (re-formatting) of video content to make them suitable for inclusion on a site like Veoh doesn’t make the company a party to the infringement. Generating income from advertising shown around potentially infringing work also doesn’t exclude a site from relying on safe harbor provisions.
In the ruling (available here in full), Judge Howard Lloyd wrote: “the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its website (at the cost of losing its business if it cannot). Rather the issue is whether Veoh take appropriate steps to deal with copyright infringement that takes place.”
The judge also found that while “the DMCA’s safe harbors do not immunize qualified service providers from liability, ‘they do…protect eligible service providers from all monetary and most equitable relief that may arise from copyright liability.
By maintaining a strong DMCA policy, taking active steps to limit infringement, and working to keep unauthorized work off the site, Veoh “met its burden in establishing its entitlement to safe harbor.”
Some are suggesting the ruling could have a significant impact on Viacom’s lawsuit against Google’s YouTube video service (history of that case and related filings here). That will likely come down to the facts of the individual case. If the court finds a majority of YouTube’s content is legitimately authorized (and not infringing on copyright) and if YouTube has followed the prescribed steps for addressing violations in the DMCA, then like Veoh, they too may be clear.
In other legal news…
Edge-online is reporting Sony has been sued by Orinda Intellectual Properties USA for infringing on Blu Ray related patents with the PS3. Orinda’s claim is tied to patent number 5,438,560.
Related Articles from Metue
•Legal Brief: Open Source Licenses Win Important Appeal
•Courts Approve Remote Storage DVR’s
•Self Policing Copyright Online: Industry Activism
•Minefields and time bombs: Glancing at Copyright
•Slingbox and Copyright Issues
•Bandwidth Blockades: How Net Neutrality Could effect the Entertainment Industry
•Google v. Viacom Lawsuit (external)
•Veoh Series C Financing