IO is a company that holds and owns a number of registered copyrighted for a variety of adult entertainment products. IO alleged that it found its own copyrighted clips from IO films on the Veoh website. None of the alleged clips contained copyright notices except one. Veoh is a site that relies on content contributed by users. Veoh is similar to a site like YouTube. IO made the case that Veoh had to break protection codes to upload videos into the Flash format that the site uses. By doing this, IO argued that Veoh became a direct infringer.
The judge determined that Veoh was still protected by the safe harbor provisions. Veoh does not actively oversee the uploading of content. Veoh has an established system where the software reformats user content automatically once uploaded. The system makes the content accessible immediately to other users. Veoh has default parameters for the submission of content by a third party. The automated system is started with the Veoh user. Everything is put into motion with the user. Veoh does not preview videos before they are uploaded. The uploading is due completely to the users. The court gave a summary judgment for Veoh. Based on the DMCA, the judge said that Veoh was in fact protected by the Safe Harbor Provision, and the site complied with the statutes.
The key detail about this case is that IO did not send any takedown notices. This is critical to my thesis that there is a severe violation and abuse of power. IO did not even follow proper procedures. There was no take down notice sent. Instead, IO went straight to court. The notice and take down course of action was completely skipped. Instead of stopping piracy, the DMCA in this case ended up limited consumer choices for a period of time. The videos were taken down and content made unavailable.
This is a case where IO Group, the maker of adult entertainment videos, sued Veoh, a YouTube-like online video site, for hosting IO’s content (uploaded by Veoh's users) without the company’s consent. But instead of sending Veoh a takedown notice, IO directly sued Veoh in the US District Court. Veoh claimed it was protected by the safe harbor provisions of the DMCA, and asked for the case to be dismissed. The judge denied IO’s request for summary judgment, determining that Veoh qualified for the protection of safe harbor. The case is interesting because it deals with what happens when a copyright holder is so unsatisfied with the amount of work that a service provider does to prevent infringement that is skips the notice and takedown procedure all together. IO believed that Veoh’s policies were inadequate and needed to be more proactive in preventing repeat offenders from creating multiple accounts and continuing to upload infringing content. The Judge disagreed with this notion, and ruled that a “policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement.”
IO’s claim in this case will be an example of an extreme view in the notice and takedown debate. While I will likely be arguing for a reform of the procedure outlined in Section 512 because it is too easily abused, IO thought the process was so insufficient as to not even use it, and instead sought immediate relief in court. The judge’s affirmation that Veoh had properly followed the law and that it did not need to take additional preventative measures to stop the infringement represents a blow to copyright holders who think the notice and takedown provision of the DMCA does not go far enough. While many think that notice and takedown system fails because it is too heavy handed, IO believes the opposite. Even though they lost, it is still worthwhile to discuss their alternative opinion, which will provide a sense of balance to the paper.