site. YouTube moved for summary judgment under the Section 512(c) safe harbor. The court
denied summary judgment, finding that there were factual issues with respect to whether
YouTube had the right and ability to control infringing activity on its site. The court agreed with
existing precedents that the right and ability to control requires more than just the ability of a
service provider to remove or block access to materials posted on its web site or stored on its
system.^2551 “Rather, the requirement presupposes some antecedent ability to limit or filter
copyrighted material.”^2552 The court found, however, that there was insufficient evidence in the
record regarding the process undertaken by YouTube from the time a user submitted a video clip
to the point of display on the YouTube site, and the extent of YouTube’s technical capabilities to
detect and pre-screen allegedly infringing videos.^2553 On Oct. 19, 2007, the court granted Tur’s
motion to voluntarily dismiss his complaint so that he could join as a plaintiff in class action
litigation filed by The Football Association Premier League Limited against YouTube on May 4,
2007 in the Southern District of New York.^2554
k. Io Group v. Veoh NetworksIn Io Group, Inc. v. Veoh Networks, Inc.,^2555 a decision by a magistrate judge, Veoh
operated a user-generated content web site through which users could also access videos from
Veoh’s content partners. Once video files were uploaded to Veoh’s system, Veoh’s employees
selected videos to be featured on the “Featured Videos” portion of the web site. A number of
clips submitted by users contained content from the Io Group’s copyrighted sexually explicit
videos, and Io Group sued Veoh for copyright infringement for hosting the clips without giving
prior notice to Veoh or demanding that Veoh take down the allegedly infringing material. Veoh
asserted the safe harbor under Section 512(c).^2556
Before users could upload videos to Veoh’s site, they were required to register and agree
to abide by the Terms of Use and Acceptable Use policies posted on the site. The Terms of Use
stated that Veoh reserved the right to monitor user-submitted material and to remove it from the
site, that the user was not permitted to publish or make available any material that infringed third
party intellectual property rights, and that the user represented and warranted that it had all rights
necessary to publish and distribute any material submitted to the site. Upon each upload of
particular material, the user was presented with an explicit reminder that it must not upload
copyrighted, pornographic, obscene, violent, or other videos that violate Veoh’s applicable
policies. Upon receiving a notice that a user had uploaded infringing content after a first
warning, the user’s account would be terminated, all content provided by that user disabled
(unless the content was also published by another non-terminated user and was not the subject of
(^2551) Id. at 9.
(^2552) Id.
(^2553) Id. at 10.
(^2554) Order Granting Plaintiff’s Motion to Voluntarily Dismiss Complaint, Tur v. YouTube, Inc., CV 06-4436 FMC
(C.D. Cal. Oct. 19, 2007).
(^2555) 586 F. Supp. 1132 (N.D. Cal. 2008).
(^2556) Id. at 1135-36.