relief. The court granted Veoh’s motion for summary judgment.^2575 Because the basic facts of
the case were not disputed, the court’s opinion addressed the significant question of the extent to
which the DMCA obligates Internet-based services like Veoh, which rely on content contributed
by users, to police their systems to prevent copyright infringement.
The court began its analysis with a review of certain key facts about the way the Veoh
system operated, and these facts seemed to provide important context for the court’s conclusions
concerning whether Veoh should have DMCA immunity. Each time users began to upload a
video to the veoh.com web site they were shown a message stating, “Do not upload videos that
infringe copyright, are pornographic, obscene, violent, or any other videos that violate Veoh’s
Terms of Use.”^2576 Veoh’s employees did not review user-submitted content before it became
available to other users, although Veoh’s system did allow it to disable access to inappropriate
videos. Veoh used a number of technologies to automatically prevent copyright infringement on
its system. Beginning in 2006, when Veoh disabled access to a video that infringed a copyright,
it used hash filtering software to thereafter automatically disable access to any identical video
and block any subsequently submitted duplicates. In addition, in 2007, Veoh began using the
Audible Magic commercial software to filter out potentially infringing video files from being
uploaded in the first instance by taking an audio fingerprint from the video files and comparing it
to a database of copyright content that was protected by copyright holders like UMG.
Approximately nine months later, Veoh applied the Audible Magic filter to its backlog of videos,
resulting in the removal of more than 60,000 videos. Although the vast majority of allegedly
infringing files had been removed in response to notices from the RIAA (acting as UMG
Recording’s agent) and the Audible Magic software, several hundred other allegedly infringing
files that the Audible Magic filter had failed to identify as infringing remained on the system.^2577
The court then turned to analysis of each of the requirements of the Section 512(c) safe
harbor. Addressing first the requirement that Veoh act expeditiously to remove infringing
content upon obtaining either actual knowledge or awareness of facts and circumstances from
which infringing activity is apparent, the court ruled that UMG had failed to rebut Veoh’s
showing that when it acquired knowledge of allegedly infringing material – whether from
DMCA notices, informal notices, or other means – it expeditiously removed such material.
Citing the Ninth Circuit’s CCBill decision, the court noted that the DMCA notification
procedures place the burden of policing copyright infringement by identifying potentially
infringing material and adequately documenting infringement squarely on the copyright owner.
The court noted that CCBill further taught that if investigation of facts and circumstances is
required to identify material as infringing, then those facts and circumstances are not “red flags”
of infringement.^2578 The court concluded: “In light of the principles articulated in CCBill that
the burden is on the copyright holder to provide notice of allegedly infringing material, and that
(^2575) UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099 (C.D. Cal. 2009), aff’d sub nom. UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).
(^2576) Id. at 1102.
(^2577) Id. at 1102-04.
(^2578) Id. at 1107-08.