phrase “right and ability to control” should be construed to impose a higher standard of control
than the common law standard for vicarious liability, and UMG had not established that Veoh
met that higher standard of control.^2586
Finally, the court turned to whether Veoh had met Section 512(i)’s requirement with
respect to termination of repeat infringers. UMG contended that Veoh’s termination policy was
inadequate because it did not automatically terminate users who uploaded videos that were
blocked by the Audible Magic filter. The court rejected this argument because however
beneficial the Audible Magic technology was in helping to identify infringing material, it did not
meet the standard of reliability and verifiability required by the Ninth Circuit to justify
terminating a user’s account. The court reasoned that, in view of the Ninth Circuit’s ruling in
CCBill that a notice by a copyright holder that specific material was allegedly infringing was not
a sufficient basis for terminating a user because it lacked a sworn declaration that the notifier had
a good faith belief that the material was unlicensed, it stood to reason that Audible Magic’s
automated filter also could not be a basis. The court noted that there was no evidence in the
record of a feasible way for Veoh to verify information in Audible Magic’s database or evaluate
Audible Magic’s process for compiling the database. Veoh had requested Audible Magic for
contact information of copyright claimants for works identified by Audible Magic’s filter, for use
in implementing a counter-notice procedure, and Audible Magic had refused. Accordingly, the
court concluded that Veoh had no way of verifying the accuracy of Audible Magic’s database,
and even if it did, it would be unreasonable to place that burden on Veoh.^2587 “As a practical
matter, when notice of a user’s alleged infringement is not reliable enough to justify terminating
the user’s account, a service provider’s removal of the allegedly infringing material is sufficient
evidence of compliance with the DMCA. In this case, when Veoh received notices of
infringement it promptly removed the material identified.”^2588
The court also rejected UMG’s argument that Veoh failed to adequately terminate repeat
infringers because it did not necessarily terminate users who uploaded multiple videos that were
identified in a single DMCA notice. If a single DMCA notice from the RIAA identified multiple
videos uploaded by one user, Veoh sent the user a first warning. It then terminated the user’s
account if the user subsequently uploaded another infringing video. The court held that this
policy satisfied Section 512(i)’s requirements, and UMG had pointed to nothing in the statute,
legislative history, or case law establishing that such a policy was not reasonable or appropriate.
Accordingly, the court granted Veoh’s motion for summary judgment that it was entitled to the
Section 512(c) safe harbor.^2589
The Ninth Circuit’s Decision
On appeal, in a very significant and wide ranging opinion, the Ninth Circuit affirmed the
entry of summary judgment in Veoh’s favor. The Ninth Circuit issued two opinions. The first
(^2586) Id. at 1115-16.
(^2587) Id. at 1116-18.
(^2588) Id. at 1118.
(^2589) Id. at 1116-18.