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Video Ruling May Not Aid YouTube's Case
The Recorder
August 29, 2008
While YouTube cheered a Northern District of California ruling this week in a case mirroring its own fight against Viacom, some IP lawyers doubt the victory of video-sharing site Veoh will have much bearing on YouTube's battle in a New York court.
YouTube has been fighting Viacom for months against charges of copyright infringement over user-uploaded clips owned by the media behemoth. In a similar case, Northern District Judge Howard Lloyd ruled on Wednesday that Veoh wasn't liable when users uploaded porn clips owned by the Io Group. Lloyd agreed with Veoh that, because the video site worked hard at policing infringing content, it was protected by the Digital Millennium Copyright Act's (pdf) safe-harbor provision.
In the Viacom case, YouTube is making the same arguments against Viacom's $1 billion claim. Zahavah Levine, general counsel of the Google-owned video site, quickly praised the Veoh decision, and the mainstream and tech media followed suit, reporting that the decision could bode well for YouTube's case.
But some intellectual property lawyers said they are skeptical that Wednesday's decision predicts the outcome in the New York federal court where the YouTube case is pending, noting the historic differences between courts on either coast.
"I think it's fair to say that as a general rule, 2nd Circuit courts tend to be more protective of copyright owners' rights than many courts in the 9th Circuit," said Scott Oliver, an IP partner at Morrison & Foerster in Palo Alto. "If you plot the results, the 9th's results tend to be more favorable to the rights of the alleged infringer."
Still, Oliver said, it's possible that a judge in New York will look at Lloyd's opinion, even though it's not required, and others are even more hopeful.
"It's the first one to thoroughly deal with the copyright issues related to user-generated content," noted Jay Monahan, general counsel of video-sharing startup Vuze. "If it's considered by other courts, it could have a big influence."
Monahan said that since the principles are the same in Viacom's case against YouTube, the Veoh case might have an impact, depending on the facts. But even if it doesn't, it's a good ruling for Silicon Valley's fleet of file-sharing companies in general.
"It's a terrific defense-side win -- it should be heartening to YouTube and more generally to other companies like them," said Eric Goldman, a professor at Santa Clara University School of Law.
In the Veoh case, Judge Lloyd noted that Veoh had an active system for dealing with copyright infringement on its site, ranging from having a "copyright agent" whose job it is to take care of complaints from copyright owners to a policy that terminates users who continue to upload infringing videos.
"The record presented demonstrates that, far from encouraging copyright infringement, 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 Web site," Lloyd wrote in the 32-page opinion.
Countering YouTube's Levine -- who said, "It is great to see the court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights" -- Viacom put out its own public statement Thursday.
"Even if the Veoh decision were to be considered by other courts, that case does nothing to change the fact that YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners," Viacom said.
Lawyers from the Veoh case -- Winston & Strawn's Jennifer Golinveaux for Veoh and San Francisco solo Dennis Gill Sperlein for the Io Group -- did not return calls seeking comment.
