a DMCA notice), and the user’s email address would be blocked so that a new account could not
be opened with that same address. Veoh also had the ability to disable access to such material on
its users’ hard drives if their computers were still connected to the Internet, and it had adopted
means for generating a digital fingerprint for each video file that enabled Veoh to terminate
access to any other identical files and prevent additional identical files from ever being uploaded
by any user.^2557
When users uploaded a video to Veoh’s system, they would provide certain metadata
about the video, including title, description, tags, selection of up to four categories best
describing the video, and a content rating. Upon receiving a video submission, Veoh’s
computers would first confirm that the submitted file was, in fact, a video file with a compatible
codec, and if so, the system would extract the file format and length, assign a unique video ID
number to it, index the user-entered metadata and store the information in a database on Veoh’s
servers. The database also automatically indexed video files into a series of lists, such as “Most
Recent,” “Top Rated,” “Most Popular,” “Most Discussed,” and “Top Favorite.” In addition to
saving the file in its original format, which users could download using Veoh’s client software,
the system also automatically converted the file into Flash format. The system also extracted
during the upload process 16 full resolution screen captures (screencaps) and 16 lower resolution
screencaps. One of the lower resolution screencaps was used to represent the video in a search
result which, when clicked on, took the user to a video details page containing the video and a
link to view all 16 lower resolution screencaps. Veoh employees occasionally spot checked
videos after publication for compliance with Veoh’s policies and to ensure accuracy in the
description and characterization of the content, and on occasion edited the video description
field. If a spot check revealed an instance of blatant copyright infringement (e.g., a movie
known to have been released only in theaters), Veoh disabled access to the material.^2558
The court rejected Io Group’s argument that Veoh had not implemented its repeat
infringer policy in a reasonable manner. The court found that Veoh’s evidence established that it
had a working notification system and a procedure for dealing with copyright infringement
notices. Veoh’s policies identified its designated copyright agent and it often responded to
infringement notices the same day received, or at most within a few days. When Veoh received
notice that user had uploaded infringing content after a first warning, the user’s account was
termination and all content provided by that user was disabled. Veoh’s fingerprint technology
enabled it terminate access to any other identical files and prevent additional identical files from
ever being uploaded by any user. Since the web site was launched, Veoh had terminated 1,096
users for repeat copyright violations.^2559
Io Group argued that Veoh’s policy failed because it did not prevent repeat infringers
from reappearing on the site under a pseudonym and a different email address. The court
rejected this argument, ruling that the hypothetical possibility that a rogue user might reappear
under a different user name and identity did not raise a genuine fact issue as to the
(^2557) Id. at 1137-38.
(^2558) Id. at 1138-40.
(^2559) Id. at 1143.