Click Here to Share! The Impact of the Veoh Litigations on Viacom v. YouTube

June 16, 2012

In the high-bandwidth Internet age, video sharing websites such as YouTube and Yahoo! Video are growing in popularity. The ease with which such sharing is accomplished has aided users in illegally uploading copyrighted movies, TV shows, and music. In a recent lawsuit, Viacom and its copyright-owning affiliates sought one billion dollars in damages against YouTube, one of the Web’s most popular video-sharing websites, for copyright infringement. In response, YouTube invoked the affirmative defense of the Digital Millennium Copyright Act’s safe harbor provisions, codified at § 512. The Act states that a service provider is not liable for hosting copyrighted information on its own system for a prolonged period of time as long the service provider has met the threshold requirements for these provisions and the specific requirements for at least one of the four safe harbors.
Before California district courts’ holdings in Io Group, Inc. v. Veoh Networks, Inc. and UMG Recordings, Inc. v. Veoh Networks, Inc., no court had examined the safe harbor defense as applied to video sharing websites. The success of this defense is now more certain after these recent holdings, which employed law consistent with prior applications of the safe harbor provisions. If the District Court for the Southern District of New York applies the Veoh reasoning, which provides similarly situated video-sharing websites a viable defense, the Court should find YouTube free from liability through the safe harbor provision codified at § 512(c). Despite Viacom’s arguments in its amended complaints, these recent cases indicate that YouTube likely meets the threshold requirements of the safe harbor provisions. Furthermore, these cases indicate that YouTube specifically falls under the umbrella of § 512(c) protection because it hosts copyrighted information on its system as “storage under the direction of the users.” Thus, the Veoh cases strongly suggest that YouTube should succeed in asserting the affirmative safe harbor defense.
A holding in favor of YouTube will correctly guide developments in copyright law toward a more efficient burden-sharing system. It would also support the goals of the Digital Millennium Copyright Act by protecting the rights of copyright holders, service providers, and end users.