So, first of all, thanks to Mike et al. for inviting me to join the blog. Alas, my time for blogging right now is limited, but I did want to point out that the district court in UMG v. Veoh granted summary judgement to Veoh on Friday. Decision here, courtesy of Copyrights & Campaigns. UMG is the second decision to come down on the issue of the responsibility of site owners to deal with continual user infringement under Section 512, and like Io v. Veoh, it’s a big win for site owners. The big one remaining, of course, is Viacom v. YouTube, pending in the Southern District of New York.
There’s bound to be some comment on how this is helpful precedent for YouTube, but I think the cases are importantly different. I’ve noted repeatedly that I think Viacom’s best factâ€”indeed, possibly the decisive factor in bringing the suitâ€”is that YouTube at one point seemed to be selectively offering to filter uploaded content. See my analysis from earlier this year.
It doesn’t appear that UMG had anything like this fact to hang its case on.
Rather, the case seems to have been motivated by UMG’s frustration that Veoh was displaying its videos without paying for them. But that frustration doesn’t seem to have translated into a clear legal argument. Judging from the decision (which is not always a reliable method), UMG’s arguments had a kitchen-sink quality to them. For example, UMG seems to have pressed hard on the idea that Veoh had “actual knowledge” of infringement because, essentially, Veoh could have inferred it from the activity on their site. I don’t think I’m mischaracterizing that argument, which should indicate how weak it was. I’m of the view that legal arguments aren’t strictly cumulative; throwing a weak one on top of a stronger one actually weakens the strong one. (UMG also got rapped for raising “disputed issues of fact” that in fact were not disputed.)
One promising, although difficult, avenue might have been to argue that Veoh purposefully refrained from using widely available filtering technology in order to profit from infringement, demonstrating either knowledge of red flags or vicarious liability. But whatever sympathies this argument might have generated were drained when Veoh implemented UMG’s preferred filtering technology a month after the suit was filed in 2007. That’s not necessarily fatal, but it doesn’t appear that UMG’s arguments were limited to conduct before that time, which makes the overall narrative of why UMG should win unclear. The main thrust of the arguments seems to have been that, despite the notice-and-takedown regime in Section 512, for various reasons site owners are essentially strictly liable for infringing content posted to their sites by third parties. That’s just contrary to the overall purpose of 512, however, and unless clearly required by the text such a “gotcha” argument seems like a long-shot.
[Cross-posted at the Marquette Law Faculty Blog.]