Advanced Copyright Issues on the Internet - Fenwick & West LLP

link to view all 16 lower resolution screencaps. Veoh employees occasionally spot checkedvideos after publication for compliance with Veoh’s policies and to ensure accuracy in thedescription and characterization of the content, and on occasion edited the video descriptionfield. If a spot check revealed an instance of blatant copyright infringement (e.g., a movieknown to have been released only in theatres), Veoh disabled access to the material. 1952The court rejected Io Group’s argument that Veoh had not implemented its repeatinfringer policy in a reasonable manner. The court found that Veoh’s evidence established that ithad a working notification system and a procedure for dealing with copyright infringementnotices. Veoh’s policies identified its designated copyright agent and it often responded toinfringement notices the same day received, or at most within a few days. When Veoh receivednotice that user had uploaded infringing content after a first warning, the user’s account wastermination and all content provided by that user was disabled. Veoh’s fingerprint technologyenabled it terminate access to any other identical files anjd prevent additional identical files fromever being uploaded by any user. Since the web site was launched, Veoh had terminated 1,096users for repeat copyright violations. 1953Io Group argued that Veoh’s policy failed because it did not prevent repeat infringersfrom reappearing on the site under a pseudonym and a different email address. The courtrejected this argument, ruling that the hypothetical possibility that a rogue user might reappearunder a different user name and identity did not raise a genuine fact issue as to theimplementation of Veoh’s policy. Io Group had presented no evidence that a repeat infringerhad, in fact, established a new account under false pretenses, much less that Veoh hadintentionally allowed that to happen. The court rejected Io Group’s reliance on the Napster caseas establishing a requirement under Section 512(i) that a site operator track users by their actualnames or IP addresses. Io Group had presented no evidence suggesting that tracking or verifyingusers’ actual identity or that blocking their IP addresses would be a more effective reasonablemeans of implementation, particularly given that IP addresses identify only a particular computerconnected to the Internet and not particular users. The court ruled that Section 512(i) does notrequire service providers to track users in a particular way or to affirmatively police users forevidence of repeat infringement. Veoh’s tracking of content that had been identified asinfringing and permanently blocking that content from ever being uploaded by any user wasadequate to satisfy Section 512(i) requirements. 1954The court then turned to whether the requirements of the Section 512(c) safe harbor hadbeen satisfied. Io Group argued that the Flash files and screencaps created during the publicationprocess were not stored on Veoh’s system “at the direction of a user,” but by Veoh’s own actsand decisions, and that Section 512(c) was not intended to protect the creation of those filesbecause Veoh used them as a means of distribution (e.g., by indexing content and organizingthem into lists), and not just storage. The court rejected this argument, noting that the broaderdefinition of “service provider” under Section 512(k)(1)(B) does not contain an express1952 Id. at 1138-40.1953 Id. at 1143.1954 Id. at 1143-45.- 421 -