I sometimes wonder about the attorneys representing the main labels, and top dollar is labeled by their ability to continually bill those supposedly struggling in quixotic efforts to fight all and any invention. We have written a lot of situations about Universal Music Group’s legal crusade against online video site Veoh. Veoh was a website not unlike YouTube, but Universal Music sued it years back, eventually losing badly, because the court made it clear that Veoh was secured by the DMCA’s safe harbors. UMG appealed and, itself power down, later acknowledging that the legal costs from the UMG case were an excessive amount of even though Veoh had won the case, the company. On charm, UMG lost again as the appeals court once again directed to the DMCA’s safe harbors. Unable to take a loss, UMG asked the court to rehear the case, which it did. End result?another big loss for UMG.
Apparently, no-one at UMG is getting the sign. The business has now recorded, all over again, asking the court to rehear the case. UMG believes that the rulings against it, arguing that the judge misinterpreted elements of the DMCA’s safe harbor. As in the Viacom v. YouTube situation, we see Universal Music here trying to completely rewrite the DMCA — pretending that it means something that it clearly doesn’t, and which many courts have denied. I can not observe that’s a clever utilization of UMG’s money.
Particularly, it argues that the DMCA has always intended the burden for copyright enforcement to fall on companies.
The new belief effectively rewrites the DMCA to supply various rules for copyright infringement on the internet. It badly shifts the responsibility of online copyright enforcement to content owners whose businesses rely on cost for the use of their works, while generally shielding internet service providers (“ISPs”) who use and reap financial advantages of these works (without compensating their owners) even if they’ve the right and ability to police their sites. The Opinion upends the carefully-crafted stability embodied in Section 512 of the Copyright Act. And, as explained below, the Opinion fails to explain the limits or scope of the DMCA’s “safe harbors.” Next to nothing there is true. The judgment is entirely in keeping with other rulings on the DMCA. Because the load should be on the copyright owner, since the service provider is never in the position to know that a work is unquestionably infringing, since the work could possibly be approved the entire position of experiencing secure harbors in the first place is. Basically, this is a situation where Universal Music’s attorneys are presenting their wishful thinking about what the DMCA should really be, although that’s been denied by the courts over and over again. You will find three key points that Universal Music is making — them all laughable.
First, it is arguing that Veoh doesn’t qualify for safe harbors because the safe harbors only affect storage, and that other things (such as the screen of the job) is not included.
first, the holding that part 512( h )’s safe harbor for violation “by reason of the storage at the direction of a user” actually involves all “access-facilitating processes that routinely occur whenever a user” uploads, channels or packages infringing product eviscerates both the language and structure of the DMCA. Congress created four distinct safe harbors, each handling different actions. Following the Opinion, Section 512( d), now appropriate to “access-facilitating processes,” swallows several of the other apparently different and distinct safe harbors whole.
This would generally ignore every one of the caselaw bordering the DMCA since its inception, and pretend that the key safe harbors only apply to net backup/storage. Any supplier (like a webhost) that enables users to display the content they shop wouldn’t qualify under this interpretation. And, obviously, that’s mad. Everyone who was around for the initial battle that created the DMCA’s safe harbors understands that it was the telcos who fought for these safe harbors. To believe that they were only fighting to safeguard net copy companies is laughable. There is just no support because of this discussion, and no court has agreed.
They also believe that this ruling “eviscerates” the “red flag knowledge” the main DMCA.
Second, the Opinion ignores longstanding copyright law to hold an ISP doesn’t have either actual or red flag knowledge of infringement unless information have been received by it identifying “specific instances of infringement.” Part 512( d )( 1 )( A) requires no such thing. Consequently, content owners must now incur the expense of continually checking hundreds of thousands (or indeed millions) of continually changing internet sites, to attempt to find copies of their works and then deliver take-down notices or otherwise advise ISPs of these “specific instances of infringement” on their sites. The Opinion needs a web sport of “Whack-A-Mole” to police infringement.
Again, this argument is wishful thinking. The entire reason why warning flags only matter certain information, as discussed in numerous other cases, is because “general knowledge” that there is some infringing works on a site does not do anything useful, as the site might have no meaningful way of coping with it at that stage, not knowing what is really infringing.
Eventually, UMG tries to imagine (despite tons upon tons of caselaw to the opposite) that the DMCA’s safe harbors cannot affect a service provider like Veoh, due to its own complete misreading of 1 of the safe harbor conditions (which the court read correctly).
Third, as a result of the Opinion’s presentation of Section 512( c )( 1 )( B), websites like Veoh, which (a) copy, perform, and spread (by offering digital downloads), tens of thousands of infringing works, (b) get a direct financial benefit from the infringement in the kind of advertising revenues that directly improve with each view of an infringing video by a user, and (c) have the “right and power to control” the infringement as these terms have historically been recognized in copyright law, nonetheless obtain a free pass under neath the DMCA until additionally they participate in an “something more” -which obviously must certanly be comparable to inducing infringement. If the Opinion is left standing, ISPs like Veoh can have no duty both to affirmatively police their site (indeed, they are disince ntivized from doing so lest they find an infringing report which will provide them with “actual” or red flag information), to adopt easily available technical answers to reduce violation, or to obtain agreement from content owners.
First of all, Veoh’s dead, so it’s nothing like it’ll have such a thing to complete, but that’s another position. More importantly, UMG’s interpretation of virtually every a key point is questionable here. Veoh qualifies for the safe harbors as it is a company. Because it is receiving financial benefit the exact same way no matter whether the content is infringing or not it does not “receive a direct financial benefit from the infringement”. Veoh received financial benefit from providing a service of hosting films. That has nothing to do with whether or not it financially benefits directly from violation. But, most importantly UMG is fairly clear in arguing that the DMCA somehow requires companies to “affirmatively police their site.” Regulations has never said no court and that has ever agreed with that argument either. UMG is merely trying to edit the DMCA the way it wishes it was published and wanting a court might agree, despite it is lost time and time again with the nearly identical arguments.
It will come as little surprise that the reasons here mirror those created by Viacom against YouTube, but both have now been very large losers up to now. They are basically trying to insist that the DMCA must mean what they always wanted it to mean, even though it is clear from the caselaw, the legislative record and the language surrounding regulations, that it was never designed to be interpreted in this manner.
Meanwhile, though, Veoh is still dead. And all this does is putting more UMG money to solicitors who have not a problem delivering silly reasons like this one provided that they keep getting paid.