Tuesday, 15 September 2009

Veoh victory a blow to Viacom action?

Universal Music have lost a US legal challenge against Veoh, the YouTube rival who, Universal argued, were infringing copyrights by allowing users to upload content without the permission of content owners. Veoh’s defence was the now fairly familiar refrain that they would remove (‘take down’) any copyright infringing content if and when they were alerted to its presence on their system and that, by so doing, they were protected by the so called 'safe harbour' provisions in USA's Digital Millennium Copyright Act.

Now U.S. District Judge A. Howard Matz has granted Veoh's motion for summary judgment, and ruled that the company is protected against such claims saying
"On August 27, 2008, Magistrate Judge Howard R. Lloyd, sitting in the Northern District of California, wrote that 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 Web site, and works diligently to keep unauthorized works off its Web site. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here."
Universal has understandably vowed to appeal the ruling saying
"The ruling today is wrong because it runs counter to established precedent and legislative intent, and to the express language of the DMCA. Because of this and our commitment to protecting the rights of our artists and songwriters who deserve to be compensated for the use of their music, we will appeal this ruling immediately. The balance between copyright holders and technology that Congress sought in enacting the DMCA has been upended by this decision".
Apart from Universal’s setback, the decision might well be a problem for Viacom (owners of MTV) in their 2007 copyright action against YouTube on similar grounds. It is perhaps prudent to note that YouTube have been implementing measures to improve their ‘take down’ system and US commentators have noted that YouTube’s system, with ongoing filter system, is superior to Veoh’s system - which has now attracted safe harbour protection. YouTube has been developing new technical systems that automatically spots content previously banned by a content owner whilst it is being uploaded by a user, so YouTube can, in theory prevent such material ever going live and without receiving a specific take down notice from a content owner and these added ‘enhancements’ to YouTube’s system might well prove to be a major spanner in the works for Viacom’s $1 billion claim. Zahavah Levine, YouTube's chief counsel said.
"With the DMCA, Congress intended to foster online platforms like YouTube, which empower users, offer new distribution channels for content owners, and respect copyright".
Fred von Lohmann, senior attorney for the Electronic Frontier Foundation said "Veoh's policies are very similar to YouTube's," adding
"The judge gave Veoh a clean bill of health. I think the court in New York (where the Viacom-YouTube case is being heard) is going to take this ruling very seriously. The facts are very, very close".
But Viacom’s general counsel Michael Fricklas was not so sure saying
"Our case is in a different forum, not bound by the Veoh case ….we remain confident that we will prevail on the law and the facts. Today's decision contradicts the consensus that sites and copyright owners share the responsibility to use readily available tools to minimize copyright infringements".

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