Copyright Law – Ninth Circuit – Is There A DMCA Safe Harbor For Video Sharing Services?

 

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 2013 WL 1092793 (9^th Cir. 2013). UMG sued Veoh, a video sharing service that provides both user-generated content and licensed content, for copyright infringement.  Veoh asserted an affirmative defense under the Digital Millenium Copyright Act, 17 U.S.C. § 512(c) (the “DMCA”) which provides a “safe harbor” against liability for copyright infringement for internet service providers who qualify for and follow the statutory scheme which include implementing a notice and takedown system.  Veoh permits subscribers to upload and share video content.  Veoh implemented a filtering system to block users from uploading copyrighted content belonging to others and additionally licensed a third-party audio fingerprinting technology that samples uploads and blocks audio files with fingerprints matching those in the copyright owner database. Through its terms of use, Veoh discourages uploading of copyrighted content.  Veoh has promptly removed any instances of copyrighted content brought to its attention. Although the RIAA sent notices requesting the removal of specifically-identified infringing materials including some UMG works, UMG did not specifically complain of individual infringements before filing a complaint.  The Ninth Circuit reviewed the “safe harbor” provisions and rejected UMG’s arguments, In particular, the Court rejected UMG’s argument that Veoh “disabling access to” infringing materials was sufficient to satisfy the safe harbor provisions of the DMCA.  The Ninth Circuit considered Veoh’s appeal of the district court’s refusal to grant attorneys fees as “costs” as authorized under 17 U.S.C. §505.  In affirming the district court, the Ninth Circuit clarified that where attorneys fees are not awardable as costs in the application of 17 U.S.C. §505, Rule 68 of the Federal Rules of Procedure does not provide an independent basis for awarding attorneys fees.  Rule 68, which makes an award of costs mandatory where a judgment obtained is not more favorable than the amount offered, is thus limited by the trial judge’s discretion in awarding attorneys fees under 17 U.S.C. §505.

To read Judge Pregerson, Fisher and Berzon’s decision, click here.

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