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Veoh ruling upheld on second appeal

By | Published on Tuesday 19 March 2013


America’s Ninth Circuit Court Of Appeal last week upheld a 2011 ruling that said that one-time YouTube competitor Veoh did not infringe copyright by hosting unlicensed material uploaded by its users, reports Forbes. Judges ruled again that Veoh’s takedown-system was sufficient to ensure the digital company protection from liability under the Digital Millennium Copyright Act.

One of the first legal tests in the American courts as to how efficient a video-sharing site’s takedown procedures must be to ensure DMCA protection, it was Universal Music which sued Veoh. The major has now lost in court three times, a first instance, on original appeal, and in the latest ruling. Though the big fat legal squabble nevertheless helped cause Veoh’s financial collapse and subsequent bankruptcy.

The Universal v Veoh case has run concurrent to the Viacom v YouTube litigation, which also centres on if and when DMCA safe harbour clauses can be used by video-sharing sites to avoid liability for any copyright infringing content their services host. An initial conclusion in the higher profile Viacom/YouTube case echoed the Veoh ruling, but that time an appeals court subsequently questioned the first instance judgement, and the dispute is now working its way back through the courts.

The latest ruling regards the Veoh case seemingly distinguishes the two lawsuits to allow for the different judgements on appeal. The Veoh case says that providing a video-sharing site has measures in place to remove infringing content when made aware of it, and maybe also some more proactive measures to spot infringing content itself (as Veoh did), then that is sufficient for DMCA protection to apply, even if the combined takedown efforts are only partly effective.

The difference with the YouTube case, say the Veoh judges, is that the issue there is “wilful blindness” on the part of the video-sharing site to ignore infringement, in the knowledge that doing so will enhance the profits or value of the video-sharing company. Viacom’s lawsuit accuses YouTube of such wilful blindness in its early (especially pre-Google ownership) days, whereas, said the Ninth Circuit judges, there was no evidence of such activity on the part of Veoh.

Of course many American rights owners would argue that video-sharing sites should be obliged to be much more proactive in policing unlicensed content than Veoh ever was, though their lawyers would recognise that such obligations will require a change in American law.

As for the “wilful blindness” thing, it’s still a vague notion to be tested as Viacom v YouTube goes through the motions. Though music and movie companies would probably say that both the MegaUpload that was and the Grooveshark that is – both services that plead or pleaded legitimacy via DMCA safe harbours – should be deprived such legal protection on those grounds.