Right and Ability to Control. Turning to the third issue on appeal, the Ninth Circuit
concluded that the district court correctly determined that Veoh did not have the necessary right
and ability to control infringing activity and thus remained eligible for safe harbor protection.
This portion of the Ninth Circuit’s opinion was substantially revised from its 2011 opinion.
The 2011 Opinion. In its 2011 opinion, the Ninth Circuit (as did the district
court) had imported a knowledge requirement into the right and ability to control requirement.
The earlier opinion had noted that a service provider may, as a general matter, have the legal
right and necessary technology to remove infringing content, but until it becomes aware of
specific unauthorized material, it cannot exercise its power or authority over the specific
infringing item and therefore could not have the kind of ability to control infringing activity the
statute contemplates. The 2011 opinion bolstered its reasoning by pointing again to Section
512(m), which it found to cut against a holding urged by the plaintiffs that Veoh’s general
knowledge that infringing material could be uploaded to its site triggered an obligation to
exercise control by policing its services.^2619 “We are not persuaded by UMG’s suggestion that
Congress meant [Section 512(m)’s] limitation on the duty to monitor to apply only to service
providers who do not receive a direct financial benefit under subsection (b). Rather we conclude
that a service provider must be aware of specific infringing material to have the ability to control
that infringing activity within the meaning of § 512(C)(1)(B). Only then would its failure to
exercise its ability to control deny it a safe harbor.”^2620
Summarizing its holding, the court’s 2011 opinion stated: “[W]e hold that the ‘right and
ability to control’ under § 512(c) requires control over specific infringing activity the provider
knows about. A service provider’s general right and ability to remove materials from its services
is, alone, insufficient. Of course, a service provider cannot willfully bury its head in the sand to
avoid obtaining such specific knowledge. ... [T]he DMCA recognizes that service providers who
are not able to locate and remove infringing materials they do not specifically know of should
not suffer the loss of safe harbor protection.”^2621 The court contrasted this more specific form of
“right and ability to control” under the DMCA with that of the broader standard for common law
vicarious liability, which can be met by merely having the general ability to locate infringing
material and terminate users’ access, as in the Napster case.^2622 The court did not elaborate in
any way on what might constitute willfully burying one’s head in the sand to avoid obtaining
specific knowledge.
The 2013 Opinion. The Ninth Circuit’s 2013 opinion eliminated the 2011
opinion’s holding that the right and ability to control requirement also depends on knowledge of
specific infringing activity, and deleted the language quoted in the two previous paragraphs
above. The Second Circuit in Viacom had expressly disagreed with this formulation of the right
and ability to control requirement:
(^2619) 667 F.3d at 1041-42.
(^2620) Id. at 1042.
(^2621) Id. at 1043.
(^2622) Id.