Tuesday, May 4, 2010

Amici urge Ninth Circuit to reverse in UMG v. Veoh case; RIAA, NBCU, PROs, and WLF weigh in

Three sets of amici have filed briefs in support of Universal Music Group's appeal of the district court's grant of summary judgment in favor of Veoh, the now-bankrupt user-generated content web video site that successfully sought safe harbor in Section 512(c) of the DMCA.
  • RIAA, NMPA, NBC Universal, and American Federation of Musicians. The RIAA brief argues that Veoh does not qualify for the DMCA Section 512(c) safe harbor because the infringing activity targeted by UMG was not "by reason of storage at the direction of a user." Id.§512(c)(1). While users upload the videos, Veoh copies and streams them to users -- activities that the brief argues are not protected by the safe harbor. The brief also argues that the district court mangled the analysis of the "right and ability to control" language in Section 512(c)(1)(B), reading it in a manner inconsistent with cases including Napster and Perfect 10 v. CC Bill. Even Prof. Eric Goldman, who hailed Veoh's "terrific win" in the district court, acknowledged that the lower court's "dichotomous language parsing seems particularly unstable."
  • ASCAP and BMI. The PROs' brief focuses on the district court's cramped reading of the "red flag" infringement doctrine. 17 USC § 512(c)(1)(A)(ii). As I noted at the time, "Courts, including this one, simply read [the doctrine] so narrowly that, for all intents and purposes, it might as well not even exist." (Though that was before the Columbia v. Fung decision.) And the brief takes issue with the district court's treatment of the DMCA provision that triggers knowledge on the part of the host based on a "representative list" of infringed works. Id. § 512(c)(3)(A)(ii).
  • Washington Legal Foundation. The free market legal organization's brief includes a lengthy discussion of the DMCA's legislative history, highlighting lawmakers' statements that the statute was intended to combat widespread Internet infringement -- not protect those who profit from it. It then goes on to attack the district court's rulings on actual and red flag knowledge, and right and ability to control.
I expect there will be amici weighing in on behalf of Veoh; I will post those once they are filed.

Disclosure: I work at NBCU and have written an article for WLF, though I was not involved in filing either of these briefs.

1 comment:

  1. The rules and the practice on the Internet downloading of music and movies

    I am a Europen lawyer, who has an Internet website in the USA, dealing with – among others – music and movie download to MP3 player, iPod touch, iPod nano and PC.

    On my website I am trying to clarify the legal aspects of downloading music and movies on Internet. That is why in the past two weeks I published on my website three articles on this issue.

    Unfortunately, there was not too much legally professional comment to these articles.That is why I ask you, the future lawyers of the USA and other English language countries to come and read these articles, and write your critical comments. I am sure that you have your own legally established opinions about your present local regulation of legal and illegeal download of music and movies on the Internet. End these rules are very different by countries, but the Internet do not observe the borders

    I beleive, that your comments would be very useful for the young people, who are not experts in the digital copyright, but they like the downloading of music and movies very much. End at the same time, you could practice the legal reasoning in written in public in this internationally actual legal issue

    These articles are the following: "Most pirates say they'd pay for legal downloads", "Watch bootleg movies online via streaming video" and "Free MP3 download: What are the harms from doing this illegally?".

    You can find these articles on the pages of the www.musictransmitters.com (Home,Blog and About). I am waiting for your comments with great inquiry.

    Arnold Hornok


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.