Author: José Mauro Decoussau Machado
Io produces, markets, and distributes adult entertainment products. In its lawsuit against Veoh, it maintained that a variety of its copyrighted videos had been uploaded and viewed on veoh.com without prior authorization. Io did not inform Veoh of the presence of the allegedly infringing files in its systems prior to bringing an action. Coincidently, Veoh had already independently decided to no longer permit adult content on its website, such that no disputed material was accessible on veoh.com by the time the suit was actually filed.
Veoh demonstrated to the court that it had a variety of safeguards to avoid copyright violations. First, Veoh has a Copyright Policy that requires users that upload content to declare that the published material does not constitute infringement of third parties intellectual property rights. Second, Veoh has a designated Copyright Agent that receives notification of alleged violations, can terminate the user’s account, and can disable all content that the user uploaded and block the user’s e-mail address so that a new account cannot be opened with that same address. Veoh employees also perform “spot checks” to determine whether uploaded videos are in compliance with Veoh’s policies and to ensure accuracy in the description and categorization of the content. If such checks reveal a blatant infringement, Veoh normally disables access to the material.
The court found that Veoh presented evidence that it fulfills the threshold requirements to qualify for safe harbor under the DMCA, as it is a service provider which has adopted, implemented, and informed users of its policy on copyright infringement. In this regard, Io failed to present evidence that a repeat infringer could have established new accounts under false pretenses, or that Veoh intentionally allowed such conduct.
The court further found that Veoh fulfilled the requirements set forth in Section 512(c) of DMCA to be qualified for safe harbor. Specifically: (1) Veoh does not itself actively participate or supervise the uploading of files, which are uploaded through an automated process which is initiated at the users discretion; (2) before the filing of the lawsuit, Io did not provide Veoh with any information about the alleged copyright infringement; (3) none of the video files uploaded contained any kind of copyright notice provided by Io, such that the infringement could be not considered obvious; (4) even if Veoh had sufficient knowledge of the alleged infringement, it has a policy of removing the disputed content from its website in the same day a notification is received; (5) and, unlike Napster, Veoh’s right and ability to control its system does not equate to the right and ability to control infringing activity, i.e., the files in question did not bear titles resembling plaintiff’s works and Io did not provide Veoh with its titles to search.
In view of the above, court found that Veoh was entitled to safe harbor and dismissed the case.
Date published: October 15, 2008