UMG v. Veoh Affirmed Again

On Thursday, the Ninth Circuit Court of Appeals issued a superseding opinion in UMG v. Veoh (Shelter Capital Partners).  The Court filed its original opinion in the case on December 20, 2011, which I wrote about here.  Both the original and new opinions held that Veoh's user-generated content website is entitled to the "safe harbor" protection of 17 U.S.C. § 512. Briefly, UMG v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site. The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA").

UMG v. Veoh raised many of the same issues as the Viacom v. YouTube case in New York, where the district court had granted summary judgment to YouTube, also on the safe harbor defense.  Viacom's appeal to the Second Circuit Court of Appeals was a little later in time than the original UMG v. Veoh appeal.  As a result, when the Second Circuit issued its opinion -- on April 6, 2012 -- it had the benefit of the earlier Ninth Circuit opinion in UMG v. Veoh.

While the Second Circuit largely agreed with the Ninth Circuit, it didn't agree 100%, as my post on the opinion explains.  This led to an interesting procedural development.  After the December 2011 opinion in UMG v. Veoh, UMG had petitioned the Ninth Circuit for rehearing, and that petition was still pending when the Viacom v. YouTube opinion was released in April 2012.  As a result, in an Order dated June 7, 2012, the Ninth Circuit requested that the parties submit supplemental briefs to address two issues about the interpretation of the DMCA in light of the Second Circuit’s intervening decision in Viacom v. YouTube. The first issue on which the Ninth Circuit asked for supplemental briefing concerned the distinction between actual and red flag knowledge under the DMCA; the second issue concerned the meaning of “right and ability to control” under the DMCA.  The parties filed supplemental briefs a few weeks later.

The Ninth Circuit has now re-affirmed Veoh's victory in its latest, superseding opinion.  In doing so, it largely eliminated any conflict with the Second Circuit's reasoning.  First, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of both “knowledge” and “red flag knowledge” under the DMCA as applying only to specific instances of infringement, rejecting UMG's argument that “red flag knowledge” can be shown by generalized knowledge that a service can be used to infringe. Second, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of “right and ability to control” under the DMCA as requiring a showing that a service provider exerts “substantial influence on the activities of users,” rejecting UMG's argument that it can be shown by a service provider’s general ability to locate infringing material and terminate users’ access.

Thus, the Ninth Circuit concluded that Viacom v. YouTube supports its earlier conclusion that Veoh was properly granted summary judgment based on the safe harbor under Section 512(c) of the DMCA.  By largely agreeing with the Second Circuit, the Ninth Circuit has now greatly lessened any need for the Supreme Court to review either case.

EFF's discussion of the opinion is here, and TechDirt's is here.  (EFF's amicus brief in the case, on which I worked, is approvingly cited at page 24 of the opinion.)