Veoh Still Perfectly Legal... But Also Still Dead Due To Bogus Copyright Lawsuit
from the why-SOPA-will-be-abused dept
In what should be a clear warning of the problems with laws like SOPA, we have a new ruling in the UMG v. Veoh case -- and how copyright holders will miss no opportunity to kill off perfectly legal services with bogus copyright claims. As you may recall, Veoh was a YouTube-like site, that was sued by Universal Music because some users had uploaded videos with UMG copyrighted music in them (technically Veoh sued for declaratory judgment first, but only in response to a threat letter from UMG, who followed up with an actual suit of its own). Veoh -- in part funded by former Disney CEO Michael Eisner -- had always been very careful to follow the DMCA notice-and-takedown process. However, in the minds of Hollywood, that's simply never enough. As in the Viacom-YouTube suit, UMG seemed to want to claim that Veoh had to wave a magic wand and figure out what was infringing and make it disappear. Thankfully, a court recognized that Veoh was legal under the DMCA. Still, UMG couldn't resist trying to bury the company in legal costs, not just suing the company, but by also suing the company's investors, in some twisted theory of secondary liability.Either way, despite being declared perfectly legal, the costs of defending against such a ridiculous lawsuit was too much for a startup like Veoh, and it was forced to shut down, living on solely to keep the case going, so that someone was able to defend against UMG's appeal.
Today we get the excellent news that the 9th Circuit has affirmed the lower court's ruling and noted that Veoh, indeed, was perfectly legal. The ruling is pretty thorough and comprehensive and dismisses some of the ridiculous claims we've see here at times. First, it notes that Veoh is clearly protected by the DMCA. Some (including UMG) have argued repeatedly that because Veoh (and others) don't just "store" the content, but process it for display/performance, that this goes beyond the DMCA protections. The court notes that, if this interpretation is accurate, it makes much of the rest of Section 512(c) of the DMCA totally meaningless -- and that doesn't make any sense. Furthermore, it points out that it would be kind of silly to suggest the DMCA only protects storage but never access:
By its terms, § 512(c) presupposes that service providers will provide access to users� stored material, and we would thus contravene the statute if we held that such access disqualified Veoh from the safe harbor. Section 512(c) codifies a detailed notice and takedown procedure by which copyright holders inform service providers of infringing material accessible through their sites, and service providers then �disable access to� such materials. 17 U.S.C. § 512(c)(1)(A)(iii), (c)(1)(C) & (c)(3)(A)(iii) (emphasis added). This carefully considered protocol, and the statute�s attendant references to �disabl[ing] access� to infringing materials, see id., would be superfluous if we accepted UMG�s constrained reading of the statute. See Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1209 (9th Cir. 2010) (�We must, if possible, interpret a statute such that all its language is given effect, and none of it is rendered superfluous.� (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))). Indeed, it is not clear how copyright holders could even discover infringing materials on service providers� sites to notify them as the protocol dictates if § 512(c) did not contemplate that there would be access to the materials.Next up is the question of whether or not Veoh fell afoul of the DMCA's "red flag" knowledge provisions -- the part that's the key to the Viacom/YouTube lawsuit. The problem here is that, as with Viacom/YouTube, UMG completely fails because Veoh clearly took down any content as soon as it became aware that the specific content was infringing. Of course, part of the problem here is that UMG never sent a takedown (oops). It just let the RIAA send some notices instead. UMG tries to get around this by arguing that because Veoh had a "music category" it must have known it had infringing material (seriously). The court is not impressed and educated UMG to the fact that, you know, not all music online is infringing:
We do not find persuasive UMG�s effort to reconcile the internal contradictions its reading of the statute creates by positing that Congress must have meant § 512(c) to protect only �web hosting� services. Web hosts �host� websites on their servers, thereby �mak[ing] storage resources available to website operators.� The thrust of UMG�s argument seems to be that web hosts do not undertake the sorts of accessibility facilitating functions that Veoh does, and thus the services they perform �fit within the ordinary meaning of �storage,� � and thereby �harmoniz[e]� with the notice and takedown procedures. UMG�s theory fails to account for the reality that web hosts, like Veoh, also store user-submitted materials in order to make those materials accessible to other Internet users. The reason one has a website is so that others may view it. As amici note, these access activities define web hosting -- if the web host only stored information for a single user, it would be more aptly described as an online back-up service...
As an initial matter, contrary to UMG�s contentions, there are many music videos that could in fact legally appear on Veoh. �Among the types of videos subject to copyright protection but lawfully available on Veoh�s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMGThen the court points out that Congress' expressed purpose behind the DMCA was to "facilitate making available quickly and conveniently via the Internet . . . movies, music, software, and literary works" and that's "precisely the service Veoh provides." You can almost hear the sarcasm in the ruling in response to UMG's preposterous suggestion that anyone hosting music online must know it's infringing. The court furthermore goes back to the Betamax ruling:
Cases analyzing knowledge in the secondary copyright infringement context also counsel against UMG�s general knowledge approach. In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court held that there was �no precedent in the law of copyright for the imposition of� liability based on the theory that the defendant had �sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material.� Id. at 439. So long as the product was �capable of substantial noninfringing uses,� the Court refused to impute knowledge of infringement....From there, the court makes a key point that we've discussed plenty of times: the only one who really knows if the material is infringing is the copyright holder:
Requiring specific knowledge of particular infringing activity makes good sense in the context of the DMCA, which Congress enacted to foster cooperation among copyright holders and service providers in dealing with infringement on the Internet...
Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.I feel like that quote needs to be stamped on the foreheads of copyright holders who keep trying to make everyone else become copyright cops for them. No one else knows if the work is authorized or not.
The court goes on to note that this was Congress' clear intent. Otherwise it wouldn't have made it clear that bogus DMCA notices can be ignored. That is, notices that don't provide the specific info don't make service providers liable. UMG (and Viacom) seek to flip that on its head, by arguing that if you know that something somewhere on your site may be infringing, you lose safe harbors and are suddenly liable. That's crazy and makes no sense... as the court clearly understands.
Congress made a considered policy determination that the �DMCA notification procedures [would] place the burden of policing copyright infringement � identifying the potentially infringing material and adequately documenting infringement � squarely on the owners." of the copyright.The court notes that it sees "no principled basis" for changing Congress' intent here.
We therefore hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one�s services could be used to share infringing material, is insufficient to meet the actual knowledge requirementThe court goes on to remind UMG that it also doesn't own all rights to every artist signed to the label. UMG had argued that because Veoh ads popped up on searches for UMG artists, that Veoh knew it was infringing. But the court notes that's crazy.
UMG argues that Veoh�s purchase of certain search terms through the Google AdWords program demonstrates knowledge of infringing activity because some of the terms purchased, such as �50 Cent,� �Avril Lavigne� and �Britney Spears,� are the names of UMG artists. However, artists are not always in exclusive relationships with recording companies, so just because UMG owns the copyrights for some Britney Spears songs does not mean it owns the copyright for all Britney Spears songs. Indeed, 50 Cent, Avril Lavigne and Britney Spears are also affiliated with Sony- BMG, which gave Veoh permission to stream its videos by these artists. Furthermore, even if Veoh had not had such permission, we recognize that companies sometimes purchase search terms they believe will lead potential customers to their websites even if the terms do not describe goods or services the company actually provides. For example, a sunglass company might buy the search terms �sunscreen� or �vacation� because it believed that people interested in such searches would often also be interested in sunglasses. Accordingly, Veoh�s search term purchases do little to demonstrate that it knew it hosted infringing material.From there, the court quickly dispatched each of UMG's nuttier attempts to show "red flag" knowledge (an email from a Disney CEO complaining to Eisner, some news articles mentioning that infringing content is on the site and a user complaining that Veoh wouldn't let him upload infringing content by noting that he's seen lots of other infringing content). None of those rise to the level under the DMCA that would show Veoh had red flag knowledge of specific infringing content that would remove safe harbors.
In fact, the court states again that specific (not general) knowledge of infringement is necessary, and that was clearly what Congress intended.
First, Congress explicitly stated in three different reports that the DMCA was intended to �protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement.� .... Under UMG�s interpretation, however, every service provider subject to vicarious liability would be automatically excluded from safe harbor protection. Second, Congress made clear that it intended to provide safe harbor protection not by altering the common law vicarious liability standards, but rather by carving out permanent safe harbors to that liability for Internet service providers even while the common law standards continue to evolve.Finally, the court also soundly rejects UMG's attempt to bring Veoh's investors into the lawsuit for vicarious and contributory infringement, as well as inducement. The problem here is that since Veoh was protected by the DMCA there was no infringement that its investors could be guilty of secondarily helping to proceed:
It is well-established that �[s]econdary liability for copyright infringement does not exist in the absence of direct infringement . . . .�Finally, Veoh itself had appealed the rejection of its request for attorneys fees. Here, Veoh wins a partial victory as the court says that the lower court needs to go back and review some (though not all) of that part of the ruling.
Either way, this should be a huge warning sign for why SOPA/PIPA would be a disaster. Just look at the status of Veoh today. It's out of business due to a totally bogus DMCA claim that forced it into court. At least under the DMCA, it was able to keep its site up. SOPA/PIPA set up a system whereby sites don't just have to defend themselves in court after they've already been shut down, but they can't even keep their business going at all while the process is ongoing. Given situations like Veoh and the Dajaz1 takedown, it should be quite obvious that copyright holders have a long history of killing off perfectly legal services by abusing copyright law. Giving them more ability to do so should insult basic common sense.
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Filed Under: copyright, dmca, pipa, protect ip, red flag, safe harbors, sopa
Companies: universal music, veoh, viacom, youtube
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That they were run into the ground with the same law is perhaps poetic justice. They may have been just barely legal, but the business model wasn't anything other than grifting, it seems.
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As for Veoh, I will take the word of a judge on Veoh's legal status under the DMCA over your word any day. The judge found Veoh to be completely legal so that it what it is.
Sadly, the judge was unable to remedy the fact that it is now dead, not through market forces at work but because of a vindictive lawsuit.
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Is arrogant asshole the standard attitude around here this month?
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;-P
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Thanks man, you really opened my eyes!
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Seriously your attitude can be summed up as "make the internet go away" - well it won't. It would be better for you just to be quiet - everything you do just causes pain for others in a fairly random way - after all Veoh was just unlucky - plenty of similar sites have survived (eg Youtube).
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Too bad that you don't want to debate ideas, you just want to take cheap shots and avoid reality.
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Good Knight.
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"Veoh bad. AC smash."
Yeah, really well reasoned.
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you mean "those companies that use existing laws to design their business model"? Those fucking bastards!
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You actually made me laugh out loud. "Well reasoned post"... man that's classic! As if any post in the past, present, or future history of the internet containing the phrase "content grifters would ever be described as "well reasoned". Even without the ad homs your misguided opinion and "reasoned" are not the same thing. You really had me fooled thinking you were being serious until you gave it away with that last one. Good show, sir. Good show indeed! I'll toss in another 50 internets to add to the ones you've already won.
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Why do you hate radio stations?
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Actually you were simply talking out of your ass again. And as Zachary pointed out, we're taking a judge's word over yours any day. And yes, the judge says, Veoh has been and is legal.
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The reality in which a judged said that Veoh was legal which makes you full of crap?
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Please take a reading comprehension course before replying. Lower courts and appeals courts found that Veoh was not infringing, that they following all the laws in place, and that UMG stepped over the line by filing lawsuits over things that are legal. This shows exactly why SOPA/PIPA would be horrible for any kind of internet use, let alone commerce.
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Barey Legal Content Grifters 3: Copyright Takes it in the Ass.
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If you read the ruling or knew anything about Veoh you'd know that you're full of shit. The company worked extra hard to take down infringing works, had a filtering system, was quick to remove content it was alerted to and blocked those caught uploading infringing works.
Basically, you're full of it.
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If Veoh wants to avoid issues, they would pre-screen their content. They did not. They instead relied on safe harbors to cover their ass. They didn't take proactive steps as much as they took reactive steps (blocking accounts post-infringement).
It's a business model predicated on a single part of DMCA, without which their reactive model for handling infringement would be illegal.
Sorry, but while they were better than many, their business model still hinged on just not having to worry.
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The problem is that many sites discovered that you can allow (some would suggest encourage) users to do bad things, and face no penalties for it, as long as you promptly act on DMCA notices you receive. So they turned the law on it's ear, basically taking what was suppose to be a legal safety net, and turning it into a way that their entire business works.
So it is legal in the strictest sense, but not really in the spirit of the law.
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Ah. I see, it's okay, but it's not. Okay, so do you really want to get into spirit of the law?
Think about what you're saying for a moment. Because if that's the can of worms you want to open, what about the spirit of the law in regards to copyright?
Keeping in mind, copyright is NOT a right, but a privilege. Granting limited control of the distribution of a product, after which it is released into a public domain.
Now, the law as it stands is Life + X amount of years. However, as originally set forth, and the spirit of which it was even allowed and expected to continue in the first place was ONLY 10 years.
So, per your own statement, copyright as it currently is okay in the strictest legal sense, but it's not really in the spirit of the law as it was originally intended.
As such, are you a hypocrite? Are safe harbors, like DMCA bad and should be done away with (because they're being abused, per your beliefs)? And if so, should that apply to things like copyright as well? Because it's being abused in it's current form (taking your words and applying them elsewhere). I mean, you can't not like one thing and not another when it's the same thing. Unless you're a hypocrite and/or not truly believing what you say (in so far as, you don't like DMCA but Life + Infinity you can get behind).
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What they were doing is not only legal, it is exactly the way that 512 safe harbors were intended to work. Their business model is exactly the type of business model that Congress intended to protect and encourage.
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Thats the only sense that matters you fucktard.
Mike is right, youre full of shit, and very probably a paid shill. Your first comment was posted 15 minuites after mike put this article up. You get paid to flick through this site all day long and spin whatever articles you see in the comments. Jesus christ examine your life bro.
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Veoh provided a service to people. People used it. Safe Harbors protected them from liability for infringement performed by their users. I still don't understand why you do not want liability to be placed where it should be placed, on the person who infringed the copyright. Rather you want liability placed on the tool the person used.
Veoh is a tool. Not the infringer. The fact that a judge can see that and you can't tells a lot about you.
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ftfy
Don't worry buddy you will get your wish and turn the internet into broadcast TV.
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He's a fool.
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You mean like the content owners who don't want to worry about policing their own content and would like service providers to just assume everything ever is infringing?
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you wanted them to.. what was that??? Hahahaahahaahaha! Pre screen? Hahhahahahahahaha!! The material? Haahaha!
That reminds me of the scene in the big lebowski where jeff asked the police officer if they could get his cassette tapes back.
How, pray tell WOULD ANYONE OTHER THAN THE CONTENT OWNER know if the material is infringing?
You are the biggest fucking idiot, ever. Boohoohoo to you and your reasoned debate. You can't even make a sensible argument in the first place, numb nuts. Oh wait, sorry, was that your term? I should just stick to calling you a fucking idiot.
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"Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not."
That would be great if they could magically prescreen all their content for legality. Their business model is hinged on reality, unlike your opinions.
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You ignore of course that the 'reactive model for handling infringement' has NEVER been illegal. Only when the DMCA came into effect did it make that illegal, with the exception of the safe harbours.
Come on AC, you talk about reasoned debate but you don't even have the facts!
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And you want all that screened? By those who are not the copyright holders?
You're insane.
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Pre-screen how? Without access to a complete list of all the works covered by copyright, and all the licensing agreements covering those works, it is simply not possible to know if any given copy is infringing.
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Your issue is with the very existence of the DMCA, which, if I may, you want abolished and/or changed. Your logic is tortured, but at least honest.
The same cannot be said about the *AA's with whom you have thrown in your lot, what with their public lies about "protecting corn farmers", "protecting jobs", "protecting artists", "protecting America", etc etc.
Clueless and stuck in a previous century, but honest.
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So you *didn't* read the ruling?
*A FSCKING US JUDGE* said that *THEY DO NOT HAVE TO PRE_SCREEN*. How on earth can you sit there are write that you are wrong, *WHEN A US COURT OF APPEAL HAS DIRECTLY CONTRADICTED YOU*?!?!?
Are you really that stupid?
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Dude. Dude. Dude.
It is a troll.
He is trying to get your goat.
You may play with him. But don't resort to YELLING.
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Yes. Yes you are. You are totally full of it.
If Veoh wants to avoid issues, they would pre-screen their content.
They did.
They did not.
Again, they did. As is clearly stated in the ruling AND in my comment earlier.
You are full of it.
They instead relied on safe harbors to cover their ass.
Even if they did as you said, that's EXACTLY what Congress clearly stated was the intended goal.
They didn't take proactive steps as much as they took reactive steps (blocking accounts post-infringement).
False. They had a hash filter and used audible magic.
Let's just admit it: you're full of shit. You've been full of shit ever since you first showed up on this site.
It's a business model predicated on a single part of DMCA, without which their reactive model for handling infringement would be illegal.
Again, even if what you say is true, this is EXACTLY WHAT CONGRESS WANTED.
You are so full of it, it's not even funny.
Sorry, but while they were better than many, their business model still hinged on just not having to worry.
Bullshit. They clearly worried about it and went way above and beyond what the law required.
You remain totally and completely full of shit.
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Shilltard, sorry, you are too.
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What was brought to court was not a reasonable, proper claim in good faith. It was a malicious attempt to stifle competition and if the law disagrees then the law itself is unreasonable and needs to be amended.
The cite responded to DMCA notices. Instead of bringing the site to court for no good reason, UMG could have worked with the cite to identify and remove infringing content. But that's not the intent, the intent is to stifle competition.
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I am going to take a class on oil painting and again found many, many videos on oil painting. Anything you are interested in is on there.
And yes, there are music videos and movie clips on there as well. Would you really propose shutting down YouTube because it is impossible to police it? Do you really feel that music on YouTube is any way harming the market for that music? If it is not harming the market, then why shut down or greatly curtail YouTube? Oh, and manual review of 48 hours of uploaded video every minute is not possible and automated systems cannot catch everything either. So what is your solution?
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Oooo! oooo! I got this one...!
Yes. Yes, he would.
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Please expound for us about your plan to both be a popular user-uploaded content hosting service AND follow your IP maximalist strict definition of what is within the law (even if several courts disagree with that definition...).
There is no plausible or practical method to pre-emptively filter a content hosting platform without making it unpopular and unusable.
Which of course leads us to conclude that IP maximalists think the internet should be a one-way channel for delivering paid content to customers rather than the communication medium that allows for exchange of ideas and user-generated content that it is.
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So you could never go to one site (YouTube etc.) for a wide variety of video content--you'd go to the site for the specific band, or indie film studio, or what have you. Anything allowing signup from the general population of Internet users would be too expensive and impractical to run.
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To me the biggest problem is how the hosting companies deal with the content, and the amount of control they exercise over it. They don't just host the content, for the most part they aggregate it, combine it, make it searchable, etc. They add html around the content, they charge access to it, and generally do everything like a normal "walled garden" site would - the only difference is they don't source the content themselves.
A host should, IMHO, give people access to exactly what you upload, without any "extra" stuff. If you upload a file, people should be able to access that file without an html page, that file should not be aggregated into a site design or master list, or otherwise "republished" in any manner. It should be accessible in exactly the same way you uploaded it.
The problem? It would negate many of the "storage locker" sites that don't make their money on the front side (selling hosting) but rather by selling access. But I think that the "selling access" part is where they show a certain level of guilt. They know that people only pay for what is valuable to them.
So part of the game is shifting the "hosting" issue back to the poster, and not to the viewer. That implied a certain amount of responsibility, in part because they would have to obtain payment from the person putting up the file, and likely collect ongoing amounts to keep the file online.
Basically, that is the difference between hosting and "file lockers"... one of them is a valid ongoing business model, and the other is "nudge-nudge, wink-wink" grifting.
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Then you say file lockers are illegal.
So youtube should just be a file locker
File lockers are bad.
"So part of the game is shifting the "hosting" issue back to the poster, and not to the viewer."
neither the viewer or the poster is the host, the person who holds onto and redistributes the content is the host of the content.
I could go on but really you seem to be lacking understanding of the fundamentals of what you are trying to talk about
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And who cares about your "humble" opinion? Certainly not the judge who declared Veoh perfectly legal. Now what does that tell you?
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I beg to differ. There is a simple way to do it, don't accept user generated content in the 1st place. It's foolproof. No need to hire extra workforce to filter it.
Then we can watch the net wither and die.
/sarc
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You are never 'equal before the law' in a system where the one with the deepest pockets wins (in court or otherwise, as this case with Veoh demonstrates).
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The investors especially should be reimbursed for being sued for funding Veoh. It's Business & Law 101 that you can't sue the investors for what the company they invested in did. That's one of the reasons people form corporations instead of sole or partner proprietorship in the first place. Going after the investors is like a form of economic terrorism met to scare away money from the target business.
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Finally, Veoh itself had appealed the rejection of its request for attorneys fees. Here, Veoh wins a partial victory as the court says that the lower court needs to go back and review some (though not all) of that part of the ruling.
There is a possibility that Veoh will get some reimbursement for attorney fees, but it will be too little too late.
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Christmas gift idea for Mike Masnick
"Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not."
One large ink pad ...
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Re: Christmas gift idea for Mike Masnick
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Re: Christmas gift idea for Mike Masnick
To order online from Simon's Stamps you must accept cookies
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*rolls eyes*
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The destruction of Veoh is a huge win for the content industries. The entire point of SOPA and Protect IP is to give the content industries the super-power to vaporize anything on the Internet which they do not approve of.
Adversarial due process simply does not scale to what the content industries want.
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Possible way for third parties to identify infringement
It might be possible for third parties to identify copyright infringement, but before that can happen, two things have to occur.
1) copyright holders must register all their copyrights in a central repository that's open to anyone to read.
2) copyright holders must register the full text of any and all licensing agreements in that same repository.
I'm not going to hold my breath waiting for it to happen.
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Re: Possible way for third parties to identify infringement
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http://www.freshnews.org/feeds/ars-technica/posts/riaa-report-card-gives-google-low-m arks-for-anti-piracy-efforts
The RIAA has said that Google has completely failed in regards to helping prevent piracy.
Google has bent over backwards and then bent some more in trying to please the RIAA. They censor AutoComplete results, they take down videos from Youtube merely because of a complaint (and after just three ACCUSATIONS, you lose your account).
And this is not enough for the RIAA. Despite Google doing so much to help the recording music industry, all at their own expense, its not enough.
Here's an idea. How about these people PAY for all these efforts Google has to go through? Which by the way are above and beyond what the letter of the law is.
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Come on, they can cut themselves off the internet. They don't need anyone but Anonymous to do that.
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A question
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Re: A question
So, Veoh isn't really dead (yet) --- except as an investment for the original investors, perhaps.
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You're all sinners...
Veoh clearly violated every law that they were accused of in UMA's clearly written, God-fearing, Christian-loving lawsuit. Those hippies can't get away with stealing from those poor recording artists!! They work too hard for you unChristian fools to STEAL FROM THEM!
True free speech is unAmerican! If you believe otherwise, you're a tree hugging communisim supporting terrorist and should be shot to leave room for proper, Christian Americans who do what we are told by the Government.
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Same old story
Sites which offer services like YouTube, Veoh and others are actually doing a service to these corporations, providing a form of exposure which would be nonexistent otherwise. If those sites affected sales in a negative way (which, btw, is completely unproven) then every independent artist would stay as far away as possible from them -- and yet they don't. Movie sales would be in a massive slump, hardly anyone would purchase DVDs and Blu-Rays, and so forth. CD sales are in a slump but that's more to do with these two things: record stores closing shop all across the country and (wait for it...) lousy music being offered. One only need type into a search engine or YouTube something like 'mainstream music sucks' to sift through all sorts of public outcry against the music industry, the awful artists it actively promotes, the dreadful state of the industry, etc.
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{checks site}
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