Sunday, July 1, 2012

Further Briefing in UMG V. Veoh

A few weeks ago the Ninth Circuit asked for further briefing in UMG v. Veoh, which I wrote about in this post.  As I explained, in response to UMG's petition for rehearing, the Court asked the parties to brief the effect of the Second Circuit's Viacom v. YouTube decision.  Both the Ninth Circuit and Second Circuit opinions largely interpreted the DMCA in ways that favored the user-generated content (UGC) websites, Veoh and YouTube, and that disagreed with interpretations requested by UMG, Viacom, and other content providers.  However, on a few issues, the Second Circuit had different views than the Ninth Circuit.

The parties have now filed their briefs.  UMG's brief is here; Veoh's brief is here; a separate brief by Shelter Capital Partners (the Veoh investors that UMG also sued) is here.  Not surprisingly, Veoh argued that it was still entitled to summary judgment under the Second Circuit's standard, should the Ninth Circuit choose to agree with the Second Circuit in those few areas where the courts initally disagreed.  UMG had a more difficult task.  UMG disliked the legal rules proposed by both the Ninth and Second Circuit.  Thus, UMG's brief asked the Ninth Circuit not to adopt the Second Circuit's views, but rather arguments that both circuit courts had already rejected.

My prediction is that sometime in the next two to six months (depending on how busy the Judges are with other matters) we will see an amended opinion in UMG v. Veoh, adopting some if not all of the reasoning of the Second Circuit.  Doing so might or might not require a remand to the district court for more summary judgment proceedings, as the Second Circuit ordered in Viacom v. YouTube (my guess is not).  UMG would then have to try to persuade the Supreme Court to hear a case where the two circuit courts that hear most of the nation's copyright appeals are in substantial or complete agreement -- it's unlikely the Supreme Court would act in such circumstances.

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