The court noted that its conclusion was bolstered by Section 512(m), which states that
nothing in Section 512(c) shall be construed to condition the applicability of the safe harbor on a
service provider monitoring its service or affirmatively seeking facts indicating infringing
activity. The court rejected the plaintiffs’ argument that Section 512(m)’s title, “Protection of
Privacy,” should cause the provision to be read narrowly. Even if privacy was the impetus for
the provision, nothing in Section 512(m) suggested that fact should limit its application. Because
the plain language of Section 512(m) is unambiguous, the heading could not limit the plain
meaning of the text.^2603
The court therefore held that merely hosting a category of copyrightable content, such as
music videos, with the general knowledge that one’s services could be used to share infringing
material, is insufficient to meet the actual knowledge requirement under Section 512(c)(1)(A)(i).
It reached the same conclusion with respect to Section 512(c)(1)(A)(ii), concluding that the
district court’s conception of the “red flag test” properly followed the Ninth Circuit’s analysis in
CCBill, which reiterated that the burden remains with the copyright holder rather than the service
provider. Accordingly, the court held that Veoh’s general knowledge that it hosted
copyrightable material and that its services could be used for infringement was insufficient to
constitute a red flag.^2604
The court then added a paragraph addressing willful blindness that was not contained in
its 2011 opinion. Citing the Viacom decision, the Ninth Circuit noted that “a service provider
cannot willfully bury its head in the sand to avoid obtaining such specific knowledge.”^2605
However, the court agreed with the district court that there was no evidence that Veoh had acted
in such a manner. Instead, the evidence demonstrated that Veoh promptly removed infringing
material when it became aware of specific instances of infringement.^2606 “Although the parties
agree, in retrospect, that at times there was infringing material available on Veoh’s services, the
DMCA recognizes that service providers who do not locate and remove infringing materials they
do not specifically know of should not suffer the loss of safe harbor protection.”^2607
The court also was not persuaded that the plaintiffs’ other purported evidence of Veoh’s
actual or apparent knowledge of infringement warranted a trial. The plaintiffs argued that
Veoh’s purchase of certain search terms through the Google AdWords program demonstrated
knowledge of infringing activity because some of the terms purchased, such as “50 Cent,” “Avril
Lavigne” and “Britney Spears,” were the names of the plaintiffs’ artists. The court noted that
artists are not always in exclusive relationships with recording companies, and other recording
companies had given Veoh permission to stream its videos by those artists. In addition, even
absent such permission, companies sometimes purchase search terms they believe will lead
(^2603) Id. at 1022 & n.13.
(^2604) Id. at 1022-23.
(^2605) Id. at 1023.
(^2606) Id.
(^2607) Id.