Group’s argument that Veoh should have known that no legitimate producer of sexually explicit
material would have omitted the labels required by federal law for sexually explicit material
identifying where records as to the performers depicted are kept. The court ruled that the
absence of such labels did not give rise to a genuine issue of material fact as to whether Veoh
had the requisite level of knowledge or awareness that the plaintiff’s copyrights were being
violated.^2562
With respect to the requirement to act expeditiously to remove or disable access to
material, undisputed evidence established that when Veoh received DMCA-compliant notices, it
responded and removed noticed content on the same day the notice was received or within a few
days thereafter. In addition, Veoh also promptly investigated other complaints about content on
its web site through a “Flag It!” feature that enabled users to bring certain content to Veoh’s
attention by flagging it from a set list of reasons such as mis-rated content, sexually explicit
content, and obscene content. Io Group argued that Veoh had willfully blinded itself to facts
suggesting infringement because the list of reasons on the “Flag It!” feature no longer contained
a choice for “appears to contain copyrighted material.” The court rejected this argument, noting
that the “Flag It!” feature itself contained a notice, prominently displayed at the top of the “Flag
It!” dialog box, directing copyright owners to a link with instructions for submitting a copyright
infringement notice to Veoh.^2563
Finally, with respect to the issue of right and ability to control the infringing activity, the
court rejected Io Group’s argument that the requisite “right and ability to control” was present
because Veoh had established and enforced policies prohibiting users from engaging in a host of
illegal and other conduct on its web site and exercised the right to police its system by
conducting occasional spot checks of video files for compliance. The court noted that the
plaintiff was focused on the wrong inquiry. Under Section 512(c), the pertinent inquiry was not
whether Veoh had the right and ability to control its system, but rather whether it had the right
and ability to control the infringing activity. The latter cannot simply mean the ability of a
service provider to block or remove access to materials posted on its web site. The court
distinguished the Napster system, which existed solely to provide the site and facilities for
copyright infringement, and Napster’s control over its system was directly intertwined with its
ability to control infringing activity. In the instant case, by contrast, Veoh’s right and ability to
control its system did not equate to the right and ability to control infringing activity. Unlike
Napster, there was no suggestion that Veoh aimed to encourage copyright infringement on its
system or that it could control what content users chose to upload before it was uploaded. Given
that Veoh received hundreds of thousands of video files from its users, the court ruled that no
reasonable juror could conclude that a comprehensive review of every file would be feasible.
And even if it were, there could be no assurance that Veoh could have accurately identified the
infringing content at issue. Accordingly, Veoh’s ability to control its index did not equate to an
ability to identify and terminate infringing videos. For the most part, the files in question did not
(^2562) Id. at 1148-49.
(^2563) Id. at 1149-50.