Jennifer LeClaire, newsfactor
IO Group's suit is not unlike Viacom's $1.6 billion lawsuit against Google-owned YouTube. In fact, MySpace, MP3tunes, Hi5, Stage6 and several other sites are facing similar battles over user-generated content.
Could this ruling be a boon for these sites? Or is the ruling merely an isolated incident in a California trial court? Google and the Electronic Frontier Foundation are betting on the former.
Web 2.0 Required Reading
EFF Legal Analyst Fred von Lohman said the ruling should be required reading for the executives of every Web 2.0 business that relies on user-generated content. The key to Veoh's victory, he said, was its scrupulous attention to the Digital Millennium Copyright Act's safe harbors.
"Veoh responded to compliant DMCA takedown notices on a same-day basis, it notified users of its policies against copyright infringement, it registered a copyright agent with the copyright office, it terminated users who were repeat infringers and blocked new registrations from the same e-mail addresses, it used hashes to stop the same infringing videos from being uploaded by other users," von Lohman wrote in the EFF blog.
As von Lohman sees it, Judge Lloyd's ruling debunks some of the favorite arguments of entertainment-industry lawyers and gives YouTube a boost in its billion-dollar battle against Viacom.
YouTube's Repeat Infringer Dilemma
But the Google case is a little different. While the California court did spell out that there is no affirmative obligation for service providers to track users or police their sites, the context of that quote was based on tracking down repeat infringers.
To qualify for safe harbor, Web sites are required to cancel the accounts of users who repeatedly submit infringing content. The court did not address to what level a Web site is required to affirmatively look for repeat infringers.
User-generated content sites could terminate a user's ID, but that user can simply register under a different screen name. Untangling the issue can be difficult, according to Mary Jane Frisby, a partner in the Indianapolis, Ind., office of Barnes & Thornburg LLP and a member of the firm's intellectual property department.
But there is a dividing line in safe-harbor provisions.
"If infringement is rampant right and left and anyone ought to be able to see it, but you don't do anything about it, then maybe you don't have safe harbor," Frisby said. "These clips on YouTube are from 'South Park' and 'Saturday Night Live.' Things that one can simply look at and say 'that must belong to somebody'."
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