I often wonder concerning the attorneys representing the main labels, and top dollar is labeled by their ability to continually bill those supposedly struggling in quixotic attempts to combat all and any development. We’ve created plenty of situations about Universal Music Group’s legal crusade against on the web movie site Veoh. Veoh was a site not unlike YouTube, but Universal Music sued it years back, eventually dropping badly, since the judge made it clear that Veoh was protected by the DMCA’s safe harbors. UMG appealed and, even though Veoh had won the case, the business itself turn off, later acknowledging that the legal bills from the UMG case were a lot of. On charm, UMG dropped again as the appeals court once again pointed to the DMCA’s safe harbors. Incapable of take a loss, UMG requested the court to rehear the case, which it did. End result?another big loss for UMG.
Apparently, no one at UMG gets the tip. The organization has now filed, all over again, asking the court to rehear the case. UMG argues that the rulings against it, arguing that the judge misunderstood parts of the DMCA’s safe harbor. As in the Viacom v. YouTube case, we see Universal Music here trying to totally rewrite the DMCA — pretending that it means something that it clearly doesn’t, and which many courts have refused. I can’t observe that is a wise utilization of UMG’s money.
Specifically, it believes that the DMCA has always intended the burden for copyright enforcement to fall on companies.
The brand new belief effectively rewrites different rules to be provided by the DMCA for copyright infringement on the net. It incorrectly shifts the responsibility of online copyright administration to content owners whose businesses be determined by payment for the use of their works, while largely protecting websites providers (“ISPs”) who use and reap financial advantages from those works (without compensating their owners) even when they have the right and ability to police their sites. The carefully-crafted balance is upended by the Opinion embodied in Section 512 of the Copyright Act. And, as explained under, the Opinion doesn’t explain the limits or scope of the DMCA’s “safe harbors.” Almost nothing there’s true. The judgment is fully in line with other rulings on the DMCA. The whole point of experiencing safe harbors in the first place is since the company is never in the position to learn that a work is unquestionably infringing, since the work might actually be certified, because the pressure must be on the copyright owner. Generally, it is a case where Universal Music’s lawyers are delivering their wishful considering what the DMCA should really be, although that’s been denied by the courts over and over again. There are three key points that Universal Music is making — them all laughable.
First, it is arguing that Veoh does not qualify for safe harbors because the safe harbors only connect with storage, and that other things (including the screen of the work) isn’t covered.
first, the holding that part 512( d )’s safe harbor for violation “by cause of the storage at the way of a user” really includes all “access-facilitating processes that automatically occur whenever a user” submissions, channels or downloads infringing product eviscerates both the language and construction of the DMCA. Congress created four discrete safe harbors, each addressing different activities. Following the Opinion, Section 512( h), now relevant to “access-facilitating processes,” swallows a number of one other apparently different and discrete safe harbors full.
This would essentially ignore all of the caselaw encompassing the DMCA since its inception, and pretend that the safe harbors only apply to web backup/storage. Any service provider (like a webhost) that allows users to produce the information they store would not qualify under this model. And, needless to say, that is crazy. Anyone who was around for the original struggle that created the DMCA’s safe harbors understands that it was the telcos who fought for those safe harbors. To think they were only fighting to protect web backup companies is laughable. There is simply no support with this discussion, and no court has agreed.
They also argue that this judgment “eviscerates” the “red hole knowledge” area of the DMCA.
2nd, the Opinion ignores historical copyright law to carry that the ISP doesn’t have either actual or red flag knowledge of violation unless information have been received by it identifying “specific cases of infringement.” Section 512( h )( 1 )( A) requires no such thing. As a result, material owners must now incur the expense of consistently scanning hundreds of thousands (or indeed thousands) of constantly changing web sites, to try to locate 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 requires a internet game of “Whack-A-Mole” to police infringement.
Again, this argument is wishful thinking. The complete reason why warning flag only concern particular information, as outlined in multiple other situations, is because “general knowledge” that there is some infringing works on a site does not do anything useful, as the site might have no significant means of dealing with it at that stage, not knowing what’s really infringing.
Finally, UMG tries to pretend (despite tons upon tons of caselaw to the opposite) that the DMCA’s safe harbors cannot apply to a service provider like Veoh, because of its own total misreading of 1 of the safe harbor conditions (which the court read correctly).
Next, as a result of the Opinion’s presentation of Section 512( c )( 1 )( B), sites like Veoh, which (a) copy, perform, and spread (by offering electronic packages), countless amounts of infringing works, (b) get a immediate financial take advantage of the infringement in the form of advertising revenues that specifically increase with each view of an infringing movie by a person, and (c) have the “right and capacity to control” the infringement as these terms have historically been recognized in copyright law, nonetheless get yourself a free pass under the DMCA until they also engage in an “something more” -which obviously must be akin to inducing infringement. If the Opinion is left standing, ISPs like Veoh may have no responsibility both to affirmatively police their site (indeed, they’re disincentivized from this lest they find an infringing record which will provide them with “actual” or red flag knowledge), to look at easily available technological answers to reduce infringement, or to acquire agreement from content owners.
To start with, Veoh’s dead, so it is nothing like it will have such a thing to do, but that is another place. Moreover, UMG’s model of nearly every a key point is doubtful here. Veoh qualifies for the safe harbors since it is really a service provider. Since it is getting financial benefit exactly the same way no matter if the information is infringing or not it does not “receive a primary financial benefit from the infringement”. Financial benefit was received by veoh from providing something of hosting videos. That has nothing to do with whether it financially benefits directly from violation. But, most importantly UMG is very blatant in arguing that the DMCA somehow requires companies to “affirmatively police their site.” What the law states has never said that and no court has ever agreed with that argument either. UMG is simply trying to edit the DMCA the way it needs it was written and wanting a court may recognize, even though it is lost time and time again with the very nearly identical reasons.
It will come as little surprise that the reasons here mirror those produced by Viacom against YouTube, but both have been fairly big losers up to now. They are basically trying to insist that the DMCA should mean what they always needed it to mean, even though it is obvious from the language, the legislative history and the caselaw surrounding the law, that it was never meant to be viewed in this manner.
Meanwhile, though, Veoh continues to be dead. And all this does is putting more UMG money to solicitors who have no problem showing foolish reasons like this one so long as they keep getting paid.