Jennifer LeClaire, newsfactor
IO Group, an adult entertainment company, had sued Veoh, alleging the site was displaying its content in violation of copyright laws. Veoh had uploaded IO Group's content without permission.
However, Judge Howard Lloyd of the U.S. District Court in San Jose disagreed with IO Group's argument. The judge ruled that Veoh is protected by the safe-harbor provision in the Digital Millennium Copyright Act. That provision protects against copyright infringement if action is taken after notification of a copyright violation.
"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 site," Judge Lloyd wrote in his decision.
Google Applauds Ruling
Google-owned YouTube was quick to praise the decision. YouTube Chief Counsel Zahavah Levine applauded the court for confirming that the DMCA protects services like YouTube that follow the law and respect copyrights. Zahavah then reiterated Google's oft-repeated statement:
"YouTube has gone above and beyond the law to protect content owners while empowering people to communicate and share their experiences online.
"We work every day to give content owners choices about whether to take down, leave up, or even earn revenue from their videos, and we are developing state-of-the-art tools to let them do that even better."
What About Viacom's Suit?
Viacom could not immediately be reached for comment.
Viacom filed a suit against Google in 2006 in the U.S. District Court for the Southern District of New York. Viacom called YouTube a "significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself and its corporate parent, Google."
Google might not want to break out the champagne just yet. Judge Lloyd made a cautionary statement that could pepper the celebration with realism. He wrote, "the decision rendered here is confined to the particular combination of facts in this case and is not intended to push the bounds of the safe harbor so wide that less-scrupulous service providers may claim its protection."
Difficult Questions Remain
While the Veoh case may have some positive trickle-down effects for Google's defense, there are distinct differences between the Google and Veoh cases, 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.
"The plaintiffs in the Veoh case never bothered to send a notice of infringing activity to Veoh before they filed suit. Of course, once Veoh was sued and realized what it was getting in trouble for, it took down all the infringing videos. So the court was sympathetic that Veoh had been taken by surprise," Frisby said. "By contrast, Viacom doesn't deny that YouTube takes down infringing content when it is notified."
One of the cruxes of Google's case is the fact that infringing videos pop up frequently. At what point does the burden of policing the content shift from the copyright owner to the Web site?
"If Viacom flags a particular user that has uploaded a Saturday Night Live sketch and YouTube dutifully takes it down, two minutes later someone else may be posting the same clip," Frisby explained. "Whether or not there's a burden shifting is a difficult question to answer."
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