DMCA safe harbor analysis UMG Recordings, Inc. v. Shelter Capital Partners LLC

1 dmca safe harbor analysis

1.1 storage vs. access
1.2 actual , apparent knowledge
1.3 financial benefits

dmca safe harbor analysis

umg claimed veoh did not qualify liability protection under dmca safe harbor provision online storage (17 usc § 512(c)) because veoh stepped outside bounds of storage defined provision, failed act despite having knowledge of infringing materials, , derived direct financial benefit infringing activities users.

storage vs. access

the safe harbor provision states service provider shall not liable ... infringement of copyright reason of storage @ direction of user of material resides on system or network controlled or operated or service provider . umg argued phrase reason of storage meant infringement must proximately caused storage , , veoh disqualified providing access on top of storage these infringing videos. however, both district , circuit court found interpretation literal, , that, dmca not have included language requiring service providers disable access infringing material had meant access not protected. in particular, ninth circuit reasoned storage without access of little use web host:

umg s theory fails account reality web hosts, veoh, store user-submitted materials in order make materials accessible other internet users. reason 1 has website others may view it.

actual , apparent knowledge

umg further alleged that, despite failing send dmca takedown notices, veoh had actual knowledge of infringement defined dmca under § 512(c)(1)(a)(i) because known site used distribute infringing videos, , veoh must have known of content on site unauthorized. circuit held that, barring specific information regarding infringement such dmca takedown notification,

merely hosting category of copyrightable content, such music videos, general knowledge 1 s services used share infringing material, insufficient meet actual knowledge requirement under § 512(c)(1)(a)(i) ,

and safe harbor rendered dead letter otherwise .

the circuit denied umg s claims hints of infringement, such tagging of videos keywords may imply infringement ( music video , avril lavigne , 50 cent , , britney spears example) or news articles discussing illegal copies on veoh, constitute apparent red flag knowledge of infringement under § 512(c)(1)(a)(ii) because such circumstances fail test red flag knowledge established in perfect 10 v. ccbill.

the circuit went further reinforcing ruling perfect 10, inc. v. ccbill llc , a&m records, inc. v. napster, inc. burden of identifying infringing material must fall on copyright holder , not service provider.

financial benefits

umg failed show veoh received financial benefit directly attributable infringing activity, in case in service provider has right , ability control such activity under §512(c)(1)(b). in particular, umg tried argue standard right ability control should follow same standards vicarious infringement, required loose supervision of users (a&m records, inc. v. napster, inc.).

however, circuit held right , ability control infringing activity must logically encompass more mere ability delete , block access infringing material because §512(c) presumes such ability service providers in requiring them removal of such material, , therefore must include factor. although left ambiguous additional factor may in original 2011 ninth court opinion , 2013 update added citation agreeing second circuit s ruling in viacom v. youtube substantial influence on activities of users , such detailed control on content or active involvement in listings on sites such ebay can constitute right , ability control infringing materials.