was issued on Dec. 20, 2011,^2590 before the Second Circuit’s decision in the Viacom case.^2591
The Ninth Circuit’s first opinion differed in some respects from Viacom’s interpretation of
Section 512(c). Because of that fact, after the Viacom decision was issued, the Ninth Circuit
panel ordered additional briefing and agreed to rehear the case. It then issued a second opinion
on Mar. 14, 2013^2592 that cited Viacom approvingly and modified its analysis to bring it into
close alignment with the Second Circuit with respect to the scope of the Section 512(c) safe
harbor. The 2011 opinion was withdrawn. The analysis below will focus on the 2013 opinion,
but will note where significant changes were made from the earlier 2011 opinion in order to align
with the Second Circuit.
Because the plaintiffs renewed their arguments that the automated processing performed
by Veoh upon a video file uploaded by a user went beyond activities that are the subject of
Section 512(c), the Ninth Circuit elaborated on the details of that processing. Upon upload,
Veoh’s software automatically broke down the video file into smaller 256-kilobyte “chunks,”
which facilitated making the video accessible to others. Veoh’s software also automatically
transcoded the video file into Flash 7 format because the vast majority of Internet users had
software that could play videos in that format. If the user was a “Pro” user, the uploaded video
file was also transcoded into Flash 8 and MPEG-4 formats, which are playable on some portable
devices. Accordingly, when a Pro user uploaded a video, Veoh automatically created and
retained four copies: the chunked file, the Flash 7 file, the Flash 8 file and the MPEG-4 file.
None of those automated conversions affected the content of the video.^2593
Veoh’s computers also automatically extracted metadata from information users provided
to help others locate the video for viewing. Users could provide a title, as well as tags or
keywords that described the video, and could also select preset categories describing the video,
such as “music,” “faith” or “politics.” The Veoh system then automatically assigned every
uploaded video a “permalink,” or web address, that uniquely identified the video and made it
available to users. Veoh employees did not review the user-submitted video, title or tags before
the video was made available. Users were able either to stream videos from the site or to
download them in a “chunked” copy of the file to the user’s computer, upon which software
reassembled the chunks into a viewable file. The downloaded file was stored on the user’s
computer in a Veoh directory, which gave Veoh the ability to terminate access to the files.^2594
The technologies employed by Veoh to automatically reduce copyright infringement on its
system, including hash filtering and Audible Magic, are described in the summary of the district
courts decisions above.
The plaintiffs made three challenges to the district court’s rulings. First, the plaintiffs
argued that the alleged infringing activities did not fall within the plain meaning of “infringement
(^2590) UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011).
(^2591) Viacom Int’l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).
(^2592) UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).
(^2593) Id. at 1011-12.
(^2594) Id. at 1012.