UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 2013 WL 1092793 (9th
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.
www.dunnington.com
Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
