The safe harbor provisions of the Digital Millenium Copyright Act (DMCA) are vitally important to any online service provider—they protect the provider from being liable for any copyright infringement performed by users of the service. In the case of Universal Music Group (UMG), a copyright owner, versus Veoh Networks, a video hosting service similar to YouTube, the safe harbor protections were affirmed as protecting a relatively broad range of activities performed by online service providers. UMG asked for partial summary judgment that Veoh was not eligible for the safe harbor provisions. At issue was a line from 17 U.S.C. § 512(c): "A service provider shall not be liable . . . for infringement of copyright by reason of the storage at the direction of the user of material [on a system controlled by the service provider.]" The district court denied summary judgment, finding that automated activities which facilitated access to stored material could also be protected.
UMG requested a very narrow reading—that § 512(c) protects storage activities performed by service providers, but no other activities. Under this reading, other activities performed by Veoh, such as "transcoding" videos from their original format to a Flash video format for easier online display, would not be protected by the § 512(c) safe harbor. Veoh would thus be liable for copyright infringement for many of the automated functions it performs on user-uploaded videos. The specific automated functions alleged by UMG to be outside the safe harbor were: (1) transcoding videos to the Flash format; (2) breaking videos into small chunks to facilitate streaming and download; (3) giving users streaming access to uploaded videos; and (4) allowing users to download videos.
Veoh argued that the language of § 512(c) "is clearly meant to cover more than mere electronic storage lockers." The court found a broader reading persuasive for several reasons. First, the literal meaning of "by reason of the storage" shows that actions taken because of the storage are protected, not just the act of storage itself. Second, the court focused on access as the central idea of § 512(c), rather than storage. They found that providing access to data was a central function of online service providers and the Internet in general, to the extent that the DMCA could not achieve its goal of promoting the growth of the Internet if the safe harbor provisions did not protect the function of providing access. Because the four functions contested by UMG were all narrowly directed toward facilitating user access to uploaded material, the court found that they fell within the scope of § 512(c). Finally, the court found that Congress intended the primary mechanism for remedying online copyright infringment to be the notice and take-down procedure. The court described notice and take-down as a "cooperative process" between copyright owners and online service providers. If UMG's interpretation of § 512(c) were accepted, the court felt that the burden of policing online copyright infringement would be shifted almost entirely onto service providers, making the cooperative notice and take-down process intended by Congress
"pointless."
Despite denial of summary judgment, this case is ongoing, along with Viacom v. YouTube, and other cases of copyright owner v. online service provider. Copyright owners will continue to try to shift the burden of policing the Internet for copyright violations further onto service providers. To the extent they are successful, service providers will become more wary of hosting content, and the Internet will lose some of its richness and variety. However, while the court's ruling was narrow, clarifying the meaning of a few words of the statute, the rationale was much more broad. If courts in other cases find the same reasoning persuasive, the Internet might remain wild, woolly, and wonderful.
The summary judgment decision (via the Electronic Frontier Foundation)
UMG v. Veoh: Another Victory for Web 2.0, by the EFF's Fred von Lohmann
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