it takes willful ignorance of readily apparent infringement to find a ‘red flag,’ Veoh has provided
substantial evidence that it fulfilled the requirements of section 512(c)(1)(A).”^2579
Specifically, with respect to actual knowledge, the court rejected UMG’s argument that
Veoh had actual knowledge of infringement merely because it knew that it was hosting an entire
category of content – music – that was subject to copyright protection. The court found that if
this were the standard for actual knowledge, the Section 512(c) safe harbor would be a dead
letter because vast portions of content on the Internet are eligible for copyright protection. Nor
did Veoh’s automatic tagging of more than 240,000 videos with the label “music video” give it
actual knowledge that such videos were infringing. The court also rejected UMG’s argument
that the RIAA’s DMCA notices gave Veoh notice of infringement beyond the specific materials
that the RIAA identified because the notices listed artists who made the materials. UMG argued
that Veoh should have sought out actual knowledge of other infringing videos by searching its
system for all videos by the artists identified in the RIAA notices, because a list of artist names
was equivalent to a representative list of allegedly infringing works, which the DMCA allows the
copyright holder to supply. The court ruled that providing names of artists is not the same as a
representative list of works. An artist’s name is not information reasonably sufficient to permit a
service provider to locate allegedly infringing material. Accordingly, the court concluded that
UMG had not provided evidence establishing that Veoh failed to act expeditiously whenever it
had actual notice of infringement, whether from DMCA notices or other sources of
information.^2580
With respect to Veoh’s awareness of facts or circumstances from which infringing
activity was apparent under the “red flag” test, the court rejected UMG’s argument that Veoh
was ineligible for the safe harbor because its founders, employees, and investors knew that
widespread infringement was occurring on the Veoh system. The court held that, even if this
were true and undisputed, UMG had cited no case holding that a service provider’s general
awareness of infringement, without more, is enough to preclude application of Section 512(c),
and such a holding would be contrary to Congress’ intent that the DMCA safe harbors facilitate
the robust development of world-wide expansion of electronic commerce, communications, and
research in the digital age.^2581
The court also rejected UMG’s contention that Veoh avoided gaining knowledge of
infringement by delaying implementation of the Audible Magic fingerprinting system for a
couple of years after its commercial availability:
UMG has not established that the DMCA imposes an obligation on a service
provider to implement filtering technology at all, let alone technology from the
copyright holder’s preferred vendor or on the copyright holder’s desired timeline.
Moreover, it is undisputed that Veoh did take steps to implement filtering
technology before it implemented the Audible Magic system that UMG prefers,(^2579) Id. at 1108.
(^2580) Id. at 1108-10.
(^2581) Id. at 1111.