United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page1of33 by the undersigned. the by adjudicated finally matterand may this heard in be proceedings all that consented expressly harbor defense. harbor (for first focusing order, its issues now court this counsel, of arguments the as well as papers, responding moving and the of consideration Upon briefs. supplemental file did, and to, permitted were parties the motionthe hearing, Following §512. Millennium17U.S.C. Act(“DMCA”), Digital the Copyright under harbor” “safe for qualifies it judgmentthat seeks Inc. Networks, Veoh Defendant liability. judgment on summary for cross-motions judgment. parties’ the VEOH NETWORKS, INC., v. IO GROUP,INC., 1 This is a civil action for alleged copyright infringement. Presently before this court are court this before Presently infringement. copyright alleged for action civil a is This Pursuant to28 U.S.C.§636(c)andFed. R.Civ.P.73,allparties have Defendant. Plaintiff, FOR THENORTHERNDISTRICTOFCALIFORNIA IN THEUNITEDSTATESDISTRICTCOURT SAN JOSEDIVISION reasons to be explained) on defendant’s safe defendant’s on beexplained) to reasons / 1 PlaintiffIoGroup,Inc.moves forsummary No. C06-03926HRL [Re: DocketNos.77and78] JUDGMENT MOTIONS FORSUMMARY ORDER ONPARTIES’CROSS- United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page2of33 filed in connection with defendant’s motionsummary for judgment. defendant’s with connection in filed distributes a variety of adult entertainment produc entertainment adult of variety a distributes TheParties A. disputed. materially not are facts following ISO Plaintiff’sMSJ,¶3, Ex.E(DunningDepo.at194:17-21)). (See website. Veoh’s of portion Videos” “Featured the on featured be to videos users. its by Veoh to submitted was materialthat is here question in content only the and, veoh.com; to content infringing uploaded and submitted have employees Veoh A (PapaDepo.at29:19-30:11);Ex.F(ShapiroDe (S behalf. their on files those upload employees Veoh’s case which in Veoh, to files video given have partners content Veoh’s instances, some in system. And, its to videos promotional uploads and creates itself Veoh 37:11-16)). (See Agency. Talent United and Magazine, CarandDriver Magazine, andTrack Road Magazine, Us CBS, Turner, including partners, (Dunning Decl.inOpp.toPlaintiff’sMSJ,¶6). respect with infringement copyright alleged of receivednotices ithas saysthat Veoh.Veoh on ofvideos thousands of hundreds shared and uploaded have users 2006, February in launch website filmmakers.its Since aspiring films to by family to gatherings, from – interviews, job Internet the over content video provided user- of sharing the enables that (veoh.com) website a and software provides which Network,” films. its for copyrights numberregistered a of owns 2 Once video files are uploaded to Veoh’s system, Veoh’s employees can and do select do and can employees system, Veoh’s Veoh’s to uploaded are files video Once content from Veoh’s videos may access users also content, user-submitted to addition In Television “Internet self-described a is (“Veoh”) Inc. Networks, Veoh Defendant markets and produces, Media, Titan as business doing (“Io”), Inc. Group, Io Plaintiff the indicated, otherwise as except motion, and instant the resolving of purposes For Unless otherwise indicated, all record citations are to the parties’ submissions parties’ the to are citations record all indicated, otherwise Unless I. BACKGROUND 2 ScherbDecl.¶2,Ex.A(ShapiroDepo.at33:17-19, to less than seven percent of those videos. videos. those of percent seven than less to 2 perlein Decl.ISOPlaintiff’sMSJ,¶¶2,4,Ex. ts, including audiovisual works. It holds and holds It works. audiovisual including ts, po. at 36:19-23)). There is no allegation that allegation no is There 36:19-23)). at po. Sperlein Decl. Sperlein United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page3of33 complaint, Veoh did not charge users for viewing videos, or impose any membership impose or any or videos, viewing for users charge not did Veoh complaint, (See proceeds. the of portion a receives Veoh and content, the viewing for charge to may choose content upload who users implemented which has program “premiumin a Veoh content” Additionally, 118:17-19)). (See programs. ad website. Before users can upload video content to veoh.com, they must register with Veoh and Veoh with must they veoh.com, register to content video upload can users Before website. Veoh’sPolicies C. terminated. been had – copyrights Io’s infringing allegedly content any including – website Veoh’s on content adult all to access filed, was timesuit the this By veoh.com. on content permit adult longer no would it that decided independently already had Veoh Coincidentally, 2006. 23, June on lawsuit instant the of filing Io’s was infringement claimed the of notice first Veoh’s violated. being were copyrights its believed it that Decl (Ruoff clip. minutesthe into several trademark Media Titan the displayed that work one for save notices, copyright contained clips the of none However, minuteslong. 40 about is clip longest the that represented further movie). He per clips minutesof 20 about average, on (or, work particular a for clips second th clarified counsel plaintiff’s argument, oral at (Plaintiff’s responsestoRFANos.65-78)).Acoupleoffileswerelongerthan20minutes; and, (See length. in seconds six than someless and were minute long, one than less are files video infringing allegedly the of Several vi and uploaded filmsbeen had copyrighted AllegedInfringement B. (See onVeoh. noadvertising was there Also, fee. subscription Veoh now offers advertising opportunities and participates in certain Google-sponsored certain in participates and opportunities advertising offers now Veoh Veoh has established Terms of Use and Acceptable Use policies, which are posted on its on posted are which policies, Use Acceptable and Terms Use of established has Veoh Veoh tell not did Io files, infringing allegedly the of presence the When discovered it from thatclips discovered saysit Io 2006, 22, ofits andJune ten 2006 1, June Between Papa Decl., ¶ 3; see also see 3; ¶ Decl., Papa Papa Decl., ¶ 4). However, during the time period encompassed by the by encompassed time the period during However, 4). ¶ Decl., Papa ScherbDecl.ISOOpp.toPlaintiff’sMSJ,¶2,Ex.D . ISOPlaintiff’sMSJ¶15,Ex.Fatp.2). ScherbDecl.,¶2,Ex.C(PapaDepo.(Vol.1)at ewed on veoh.com without its authorization. authorization. its veoh.comwithout on ewed at, in some instances, there was a series of six- of series a was there some in instances, at, 3 Papa Decl., ¶2). Decl., Papa United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page4of33 (Papa Decl.¶5,Ex.A).TheTerms ofUsefurtheradvised: that: agree to users required Terms Use of Veoh’s complaint, timethe of by encompassed period relevant the During policies. those by abide to agree begins to upload a video, the system displays the video, a upload to begins (Papa Decl.¶6,Ex.G). (Papa Decl.¶5,Ex.A). Veoh also reminds users of its policies during the upload process. When now user a process. upload the during policies its of reminds users also Veoh law. copyright of violation in Services Veoh the using is learns it who anyone laws. copyright including Services, Veoh the through available content the to applicable laws state and federal all complying with for responsible same.are the You do to users our expects and material, their of uses that: users advised Policy Use Acceptable Veoh’s Similarly, occasions). more two on than Material ha to found persons (i.e., infringers repeat be to found are who persons any by posted, Materials User remove all and Service, Veoh the to access terminate to right the reserves and Service Veoh the on activities infringing permit copyright not does Veoh above, explained As Policy. Use Acceptable Terms the or these of violation your to relating or of out damages arising demands or claims, losses, liability, any harmlessfrom against Veoh and toindemnify Youagree UsePolicy. hold Acceptable and conforms the to Material User such that and Service Veoh the through you by made available Material User any distribute and publish to necessary rights all have you that warrant and represent You Policy. Use Acceptable the violates otherwise that ri including rights, property intellectual party of third infringement an constitutes that Material User any available make or may publish you not Accordingly, laws. property intellectual other and copyright comply to with Service Veoh the of users all requires Veoh Policy. Use Acceptable Terms the or these violated have you that determine we if Service Veoh the of use your terminate to right the reserves Veoh Service. Veoh the through downloaded have you materialthat User such to access disabling Ma User any of content remove block or from time time Veohmay, to purpose. you, anylawful noticeto for without Material User monitor any to right the reserve do and have shall agents its and Veoh However, Material. User monitor any to obligation no have shall Veoh transferable. and irrevocable royalty-free, perpetual, nonexclusive, is and Service Veoh the of use your of consideration in made granted is permission and this that and users, other by download for limitation without including Service, Veoh the through Veoh by available freely may made be Service Veoh the to make you available that Material User any Accordingly, Veoh reserves the right to terminate the service account of account service the terminate to right the reserves Veoh Accordingly, commercial control to owners copyright of rights the respects Veoh ve uploaded copyright infringing User infringing copyright uploaded ve a message stating, “Do not upload copyrighted, upload not “Do message a stating, ghts grantedbyU.S.copyrightlaw,or 4 terial from the Veoh Service, including Service, from Veoh the terial United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page5of33 account cannot be opened with that same address. (See same that address. with opened be cannot account new a that so blocked is email address user’s the and notice), DMCA a of subject the not is and user non-terminated another by published also was content the (unless disabled is user that by provided content all terminated, is account user’s the then warning, first a after content Decl., Exs.A,C,D,FandG).When Veohr provides information about how and whereto informationand how about provides (Id complaint. the by encompassed period relevant the during users to material) pornographic to reference the without (presumably (See Conditions.” Terms and Publisher Veoh violate that videos other any or violent, obscene, pornographic, resides on their computers) and upload it to the Veoh system. (See Veoh the to it upload and computers) their on resides Decl. ISOPlaintiff’sMSJ ¶¶24-25,Ex.G).Users (See rating. content a select (d) and video; the describe best which categories four to up select (c) “tags”; or words key enter (b) description; and names. (See actual their give (See password. a and address name, email an user a provide to required are users process, registration the In website. the UploadingVideoContentonVeoh.com D. 13). ¶ Decl. (Dunning user. any by uploaded frombeing ever files identical additional prevent and files identical other any to access terminate to Veoh enables which file, video each for “fingerprint” digital a meansgenerating for adopted has Veoh Additionally, Internet). the to connected still are computers their (assuming drives hard users’ its material on such to access disable to ability the has also Veoh 98:3-7)). Vol.1, Depo., (Papa C Ex. 2, When users upload a video file to Veoh’s system, they are asked to (a) provide a title a provide (a) to asked are system, they Veoh’s to file video a When upload users User-SubmittedVideos to content video upload can they before Veoh with must users register above, noted As 1. recei to Agent Copyright designated a has Veoh Papa Decl. ¶ 8, Ex. I). Veoh says that it gave a substantially similar warning substantially a gave it that says Veoh I). Ex. 8, ¶ Decl. Papa ScherbDecl.¶2,Ex.B(DunningDepo.,72:2-13)). DunningDecl.,¶4,Ex.A).Theymay, butarenotrequired to, .). eceives notice that a user has uploaded infringing uploaded has user a that notice eceives send notices of claimed infringement. (See claimed infringement. of notices send 5 then select the video file (from wherever it (from wherever file video the select then ve notification of claimed violations and claimed violations of notification ve DunningDecl.¶5,Exs.BandC;Ruoff Dunning Decl. ¶¶ 10-12; Scherb Decl. ¶ Decl. Scherb ¶¶10-12; Decl. Dunning ScherbDecl.,¶2,Ex,.B Papa United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page6of33 MSJ, ¶2,Ex.A(PapaDepo.at12:10-24,124:3-13)). Plaintiff’s ISO Decl., limited a time. (Sperlein only for maintained system and Veoh’s by to these images as still imagesscreencaps. or images still as these to simply refer will it purposes, present For material. be to discrepancy the find not does court This screenshots. reduced-size or thumbnails, true images are still of the all whether disputes http:/en.wikipedia.org/wiki/Flash_format. See Internet. the over transmitvideos to format used name file a the of be to it understands submission is a compatible video file, the Veoh system automatically extracts certain metadata certain extracts system automatically Veoh the file, video compatible a is submission (Sperlein Decl.ISOPlaintiff’sMSJ, with file video a fact, in is, file submitted 40:4-11)). (Dunning Depo.at132:7-11);SperleinDecl.ISO extracts several still images fromfile. still each several extracts (b) format; and Flash into video user-submitted each converts (a) automatically system also Plaintiff’s MSJ,¶2,Ex.A(PapaDepo.39:10-40: ISO Decl. (Sperlein Favorite.” “Top and Discussed” “Most Popular,” “Most Rated,” “Top Recent;” “Most as such lists, of series a into files video indexes automatically also database Decl. ISOPlaintiff’sMSJ,¶3,Ex.E(Dunni orde in database the of etc.) genre, description, title, by (e.g., searches conduct then can Users 20:14-21:10)). at Depo. (Dunning E Ex. 3, Scherb Decl.,¶2,Ex.B(DunningDepo.at132:7-133: (See servers. Veoh’s on database a in information the stores and information user-entered the indexes numberit, to identification video unique a assigns length), format and file from (e.g., it 5 4 3 .“Flash”Files its from user, file a video a receives Veoh when process, uploading the of part As 2. the confirm that first computers its submission, video a systemWhen receives Veoh the Defendant refers to the still-image screen captures as thumbnails. Plaintiff thumbnails. as captures screen still-image the to refers Defendant court this but is, file Flash a what precisely explained side Neither reject effect, in are, files Incompatible 4 andScreencaps ¶2,Ex.A(PapaDepo.at12:10-17:21)). a compatible “codec” (or compression format). compression (or “codec” compatible a ng Depo. at 22:18-23:18; 28:1-29:1)). The 28:1-29:1)). 22:18-23:18; at Depo. ng r to find videos they wish to view. (Sperlein view. to wish they videos find to r 5 6 9); RuoffDecl.ISOPlaintiff’sMSJ,¶26). Plaintiff’s MSJ,¶3,Ex.E(DunningDepo.at ed. Such files are marked incompatible are files Such ed. 3; SperleinDecl.ISOPlaintiff’sMSJ,¶ 3 Ifthe United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page7of33 computer hard drive. (Id drive. computer hard formattheir to original its in file video the of copy a may they download then software, Client” ISO Plaintiff’sMSJ,¶3,Ex.E(DunningDepo.at Decl. format. (Sperlein original its in indefinitely servers Veoh’s on resides video submitted users to view or access. (See id (See access. or view to users for available not are system but Veoh the on reside resolution video original the in Screencaps B (DunningDepo.at133:6-14), Ex.D(Papa (See screencaps. resolution lower 16 and video incoming the as resolution same the in “screencaps,” or captures, screen resolution full 16 i.e., – images fromfile each (Id length. to as limitation format without Flash to files video all converted system has Veoh’s 2006, October MSJ, Plaintiff’s ISO Decl. (Sperlein clip. preview Flash three-minute a create system would Veoh the minutes, ten than longer videos format. For Flash into converted be would length minutesin ten than shorter were that videos automated. entirely is files Flash the of creation The 3-4). ¶¶ MSJ, Plaintiff’s to Opp. in Decl. Dunning 6); No. Interrogatory to Responses Supplemental (Veoh’s E Ex. ¶2, Decl. (Scherb process. the in used software party third the by set parameters of range a within values default are says it which frame and size) rate bit frame rate, (e.g., parameters certain selects MS Plaintiff’s ISO Decl. Sperlein 124:3-125:12); format. Flash (See into video user-submitted each convert automatically to software third-party use computers its video, user-submitted a system receives Veoh the when process, uploading the of part as format. So, “Flash” in videos During the upload process, Veoh’s system also automatically extracts several still several extracts automatically system also Veoh’s process, upload the During complaint, timethe of by encompassed period the during and 2006, October Before play can that software have now users Internet majorityof vast the that says Veoh user- the of equivalent “bit-for-bit” formats.A of variety a in files submit video Users .). .FlashFiles a. .Screencaps b. . at 40:1-21). at . ., Ex.D(PapaDepo.at160:21-161:18). ¶2, Ex.A(PapaDepo.at129:10-130:18)).Since ScherbDecl.,¶2,Ex.C(PapaDepo.,Vol.1at Depo. at 155:22-24, 159:25-161:18; 166:8-17)). 166:8-17)). 159:25-161:18; 155:22-24, at Depo. 7 J, ¶3,Ex.E(DunningDepo.at47:3-9)).Veoh 42:1-11)).IfusersdownloadVeoh’s“Veoh ScherbDecl.¶2,Ex. United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page8of33 When users click on a specific image on the search results page, they see a “Video Details “Video a see they page, results search image the on specific a on When click users (Dunning Decl.inOpp.Plaintiff’sMSJ,¶5; from video. a image extracted still a by represented result each with grid, a in shown are thesearchresults onVeoh, forvideos userssearch when Thus, 133:4-14)). at Depo. (Dunning (Scherb Decl.,¶2,Ex.D(PapaDepo.at166:8-17); at 100:24-101:6)). at (Sperlei theaters. only in released been have to movie a of known removed videos instance, one least at in has, example, Veoh For material. such to access disables Veoh infringement, copyright blatant of instance an reveals check” Decl. ISOPlaintiff’sMSJ,Ex.A(PapaDe ISO Plaintiff’sMSJ¶2,Ex.A(PapaDepo.at (See needed. as tags added and “straight” or “gay” as identified be should they whether determine to files explicit sexually reviewed materialand explicit sexually containing file any on ratings proper ensure to files sometimes employees Veoh veoh.com, reviewed on permitted still was content adult when And, field. description video the edited occasion, (See content. the of categorization and description the in accuracy ensure to and policies Veoh’s automated. entirely is screencaps the of creation The 157:20-159:19)). at advent ofFlashpreviewsonVeoh.(SperleinD the by diminished was screencaps the of value the that acknowledges it However, it. download they before contains likely video a what understand users help screencaps the that says Veoh (Dunning Decl.inOpp.toPlaintiff’sMSJ,¶5; from video. the screenshots lower-resolution 16 the see can users link, Screencaps” “Video also see 5; ¶ MSJ, Plaintiff’s Opp. in Decl. (Dunning Screencaps.” “Video called link a and video the containing Page” ScherbDecl.¶2,Ex.B(DunningDepo.at136:10-138:22)).Forexample, Veohhas,on Of the 16 lower-resolution images, one is used to represent the video in a search result. result. search a in video the represent to used is images, one lower-resolution 16 the Of .Post-Publication“SpotCheck” with compliance for publication after videos check” “spot occasionally employees Veoh 3. RuoffDecl.ISOPlaintiff’sMSJ¶26,Ex.E).Byclickingonthe po. at 110:10-111:16)). Additionally, if a “spot a if Additionally, 110:10-111:16)). at po. n Decl.ISOPlaintiff’sMSJ ¶2,Ex.A(PapaDepo. Ruoff Decl.ISOPlaintiff’sMSJ¶26,Ex.H). 203:4-15, 244:6-245:17); Sperlein Supplemental Sperlein 244:6-245:17); 203:4-15, 8 Ruoff Decl.ISOPlaintiff’sMSJ,¶13,Ex.D). ecl. ISOPlaintiff’sMSJ,¶2,Ex.A(PapaDepo. Sperlein Decl.ISOPlaintiff’sMSJ¶3,Ex.E Sperlein Decl. Sperlein United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page9of33 produce evidence supporting its claims or defenses. See claimsdefenses. or its supporting evidence produce 210 F.3d1099,1102(9thCir.2000). Inc. Lobby, Liberty v. Anderson 56(c)); 130:15, 138:4-22);Ex.C(PapaDepo.,Vol.1at35:6-24)). Scherb Decl.,¶2,Ex.A(ShapiroDepo. made. (See been since have that submissions numberuser of the given so do to feasible not was it implemented never because was policy the claims that Veoh However, users. veoh.com by to submitted videos ten first the may employees watched have Veoh’s that indicates record the 56(e)(2). A genuine issue of fact is one that that one factis of issue Agenuine 56(e)(2). See trial. for materialfact of issue genuine a is there shows that evidence admissible must produce instead but evidence, party’s adverse the of denials or allegations Ltd. Co., Ins. Marine Inc. Companies, Fritz v. Ltd. Co., Ins. Marine & Fire Nissan trial.” at persuasion of burden ultimate its carry element to essential an of evidence enough have not does party nonmoving the that show or claim defense or party’s nonmoving the element of essential an negating evidence produce must moving party either “the meet burden, to its order In (1986). 323 317, Catrett v. Corp. Celotex material fact. of issue triable a of absence the demonstrate which affidavits or admissions, interrogatories, to answers depositions, pleadings, the of portions identifying motion, and the for basis the of court the informing of burden initial the F matterlaw. a of judgmentas to entitled is moving party the and material fact 512(c). that contends Veoh infringement. copyright If the moving party meets its initial burden, the burden shifts to the non-moving party to party non-moving the to shifts burden the burden, meetsinitial movingits party the If Veoh’s policies previously stated that all video content was approved by editors; and, editors; by approved was content video all that stated previously policies Veoh’s A motion for summary judgment should be granted if there is no genuine issue of issue genuine no is there if motionsummaryA granted for be judgmentshould vicarious and contributory direct, for summary seeks liability now judgmenton Io , 210F.3dat1102.Thenon-moving partymay notrestuponmere II. LEGALSTANDARD , 477U.S.242,247-48(1986).Themoving partybears at 10:17-17:10;Ex.B(DunningDepo.129:24- could reasonably be resolved in favor of either of favor in resolved be reasonably could it qualifies for “safe harbor” under DMCA, Section DMCA, under harbor” “safe for qualifies it 9 F ED .

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.R.C C , 477U.S. IV . IV

P. .P. , United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page10of33 genuine issue for trial. Id trial. for issue genuine a is there that demonstrate to sufficient evidence must but present denials, or allegations mere upon may rest party not nonmoving the burden, meets movingthis party the Once 325). Devereaux v.Abbey case.’” party’s nonmoving the support to evidence of absence an is there ‘that out point law. Anderson governing the under suit the outcome of the affect could it if only “material” is dispute A party. questions of copyright liability in the online wo online the in liability copyright of questions 105- No. Rep. S. age.” digital the in education commerce, electronic of expansion world-wide TheDMCA A. moot. is DMCA the under provided relief limited injunctive the that from further, damages and, protection harbor safe for eligible is Veoh that summary concludes court judgmentmuster, this proceeding.”). outcome of the affect can it materialif only is fact of dispute a because order traditional the of out issues decide to court a for appropriate Inc. Loopnet, also see vine”); the on wither claims will the that ensures protection (“[E]ven if[plaintiff’s]copyrightinfringement See 512(c). section DMCA under harbor safe the of applicability the motion to as Veoh’s address first to more and efficient appropriate it finds court the here, presented circumstances the Under relief. limited injunctive only with owners copyright provide they from liability, providers service immunize donot safeharbors theDMCA while However, applies. harbor safe online any Enacted in 1998, the DMCA was “designed to facilitate the robust development and development robust the facilitate to “designed was DMCA the 1998, in Enacted As discussedmore fullybelow,evenassumi whether determining examinedbefore be would liability concerning issues Ordinarily, only need moving party the trial, at proof of burden the has “When party nonmoving the CorbisCorp.v.Amazon.com, Inc. , 164F.Supp.2d688,699(D.Md.2001)(“Onsummary judgment, itisoften , 477U.S.at248. , 263F.3d1070,1076(9thCir.2001)(quotingCelotexCorp. . III. DISCUSSION 190, at 1-2 (1998). “Difficult and controversial and “Difficult (1998). 1-2 at 190, 10 , 351F.Supp.2d1090,1098(W.D. Wa. 2004) communications, research, development, and development, communications, research, claims can bare [sic] fruit, [defendant’s] liability [defendant’s] fruit, claims [sic] bare can rld prompted Congress to enact Title II of the of II Title enact to promptedCongress rld ng that plaintiff’s infringement claims pass infringement plaintiff’s that ng CoStarGroup,Inc.v. , 477U.S.at United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page11of33 copyright infringement under four “safe harbors.” See harbors.” “safe four under infringement copyright F.3d at1076(quotingS.Rep.105-190,20(1998);H.R.105-551(II),49-50(1998)). 49 (1998). “Congress hoped to provide ‘greater cer ‘greater provide to hoped “Congress (1998). 49 at 105-551(II), Rep. H.R. (1998); 20 at 105-190, Rep. S. environment.” networked digital the deal and detect to cooperate to owners copyright and providers service for incentives strong “preserve[] to seeks OCILLA interests, respective Robertson v. Ellison (OCILLA).” Act Limitation Liability Infringement Copyright Online the DMCA, 19 (1998)). 19 liable of ‘limitations OCILLA’s that provided Congress providers, service online against infringement claimscopyright of evaluate to standards Inc. LoopNet, v. Inc. Group, CoStar (quoting exclusive.’”) is therein described liability on limitation CCBill LLC ot any of exclusive not are provisions harbor Corp. Corbis relief. limited injunctive with cont and vicarious direct, for monetary relief all for from liability providers service qualifying protect they is, That 2002)). Cal. (C.D. 1174 Inc. Ventures, Cybernet Inc.v. 10, Perfect (quoting 2007) Cir. (9th 1109 lia contributory and vicarious, direct, of doctrines various the under ultimateliability of question the affect not ‘do but liability Ellison tools.” information location (4) systems on residing information (3) system caching; communications; (2) network digital transitory for:(1) from liability protection provide harbors Ellison activities.’” their of course the mayin that occur infringements for exposure legal , 373F.3d544,552(4thCir.2004)).“Farshort of adoptingenhancedorwhollynew under existing principles of law of principles existing under OCILLA enables qualifying service providers to limit their liability for claimed liability limit to their providers service qualifying enables OCILLA , 357 F.3d 1072, 1076 (9th Cir. 2004). In order to strike a balance between their between balance a strike to order In 2004). Cir. (9th 1076 1072, F.3d 357 , , 488F.3dat1109(“‘[N]othinginthelanguageof §512indicatesthatthe bility.’” Perfect 10, Inc. v. CCBill LLC CCBill v. Inc. 10, Perfect bility.’” .’” Ellison .’” , 357 F.3d at 1076-77. “These safe harbors limit safeharbors “These 1076-77. at F.3d 357 , , 351F.Supp.2dat1098-99.Further,thesafe her defense an accused infringer might have. might have. infringer accused an defense her ributory infringement, leaving copyright owners copyright leaving infringement, ributory 11 with copyright infringements that take place in place take that infringements copyright with , 357F.3dat1077(quoting S.Rep.105-190, liability apply if the provider is found to be to found is provider the if apply liability tainty to service providers concerning their concerning providers service to tainty or networks at the direction of users; and users; of direction the at networks or 17U.S.C.§512(a)-(d).“Thesesafe , 213F.Supp.2d1146, , 488F.3d1102, , 357 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page12of33 network access, or the operator of facilities th facilities of operator the or access, network or services online of means provider a provider’ term “the ‘service provision, that Under applies. 512(k)(1)(B) Section under definition broader the 512(c), Section under harbor safe See or toidentify owners copyright by used subparagraph (A).”17U.S.C. §512(k)(1)(B). 512(i)(2)(A)-(C). U.S.C.§ 17 adopt, reasonably implement and inform subscribers of a policy providing that it may, it in that providing policy a of implement inform subscribers and reasonably adopt, (see provider” must it “service a is, be That requirements. DMCAThresholdRequirements B. here. activity infringing alleged the to respect with harbor triable issue whether Veoh implements its repeat infringer policy in a reasonable manner. reasonable a in policy infringer implements repeat Veoh its whether issue triable wo copyrighted protect to used measures” technical “standard with, interfere not accommodates, does (b) and and policy infringer repeat its 512(k)(1)(B). F.3d at1080. See works.” copyrighted protect or identify to owners measures” technical “standard with, accommodate, must interfere and not Ellison 512(i)(1)(A); See infringers. repeat of accounts the terminate circumstances, appropriate 17 U.S.C. § 512(k). Because Veoh’s motion Veoh’s Because itsclaimed onlyon isbased §512(k). for eligibility U.S.C. 17 7 6 With these principles in mind, the court now considers whether Veoh is entitled to safe to entitled is Veoh whether considers now court mind, in the With principles these Io does not dispute that Veoh is a “service provider” as defined by DMCA Section DMCA by defined as provider” “service a is Veoh that dispute not does Io To availitselfofanythefoursafehar 7 DMCA Section 512 contains two definitions of the term “service provider.” provider.” term the “service of definitions two contains 512 Section DMCA networks. systems or their on burdens substantial or providers service on costs impose substantial not do (C) terms; and nondiscriminatory and reasonable on person any to available are (B) process; standards multi-industry voluntary, fair, open, an in providers service and owners copyright of consensus broad a to pursuant developed been have (A) are measuresthat “technical as defined are measures” technical “Standard Nor does it dispute that Veoh (a) has adopted and informed account holders of holders informedaccount and adopted has (a) Veoh that dispute it does Nor , 357 F.3d at 1080. Further, the service provider is obliged to obliged is provider service the Further, 1080. at F.3d 357 , protect copyrighted works” and which: and works” copyrighted protect erefor, and includes an entity described in described entity an includes and erefor, 12 bors, Veoh must first satisfy certain threshold certain mustsatisfy Veoh first bors, rks. However, Io contends that there is a is there that contends Io However, rks. 17 U.S.C. § 512(i)(1)(B); Ellison §512(i)(1)(B); U.S.C. 17 17U.S.C.§512(k))anditmust 6 usedbycopyright 17U.S.C.§ , 357 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page13of33 implement a variety of procedures, but an implementation is reasonable if, under ‘appropriate under if, implementationreasonable an is but procedures, of implement variety a LLC CCBill notifications.” such issue to needed information from collecting owners copyright prevent actively not with dealing for system,procedure a notification working a has it if ‘implements’ policy a provider service “a that held has Circuit Ninth repeat copyright violations. (Id., ¶ 12). Plain 12). ¶ (Id., violations. copyright repeat notices: infringement copyright with dealing for procedure a and Id copyright.” infringe blatantly or repeatedly who users terminates provider service the circumstances,’ The DMCA does not say what “reasonably implemented” means. Nonetheless, the implemented” means. Nonetheless, “reasonably what say not does DMCA The Veoh asserts that, since its website was launched, it has terminated 1,096 users for users 1,096 terminated has it launched, was website its since that, asserts Veoh for “fingerprint,” digital or “hash,” a meansgenerating for adopted has Veoh • a after content infringing uploaded has user a that notice When receives Veoh • or received, are same they the day notices infringement to responds often Veoh • Veoh’s complaint, the times by all encompassed at and 2006, April least at Since • system notification working a has it that indicates evidence Veoh’s above, discussed As . uploaded by from files identical additional prevent and files identical other any to access terminate to Veoh enables essentially technology This file. video each Dunning Decl.¶¶10-12;Scherb¶2,Ex.C (PapaDepo.,Vol.1,98:3-7). (See same that address. with opened be cannot account new a that so blocked is email address user’s the and notice), DMCA a of subject the not is and user non-terminated another by published also was content the (unless disabled terminated, is account the then warning, first at most, withinafewdays.(DunningDecl.¶9). claimedof infringement. (See notices send to where and how about information provide and claimed violations of notification receive to Agent Copyright designated its identified have policies any , 488 F.3d at 1109. “The statute permits service providers to providers permits service statute “The 1109. at F.3d 488 , user. (Dunning Decl. ¶13). Decl. (Dunning user. PapaDecl.,Exs.A,C,D,FandG). tiff has presented no evidence to the contrary; and, contrary; the to evidence no presented has tiff 13 DMCA-compliant notifications, and if it does it if and notifications, DMCA-compliant all content provided by that user is user that by provided content ever being United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page14of33 message before allowing that user to upload video files toveoh.com. files video upload to user Veohsaysthat that However, message allowing before email confirming a sending by email address user’s a verify attemptedto apparently time, Veoh pse a under Veoh on from reappearing infringers i to needed information from collecting owners copyright prevents actively Veoh that court the before record the in suggestion no is there Id explained: has Circuit disagrees. court This all. at policy no to tantamount is policy infringer repeat its that and infringers repeat track reasonably to fails Veoh that contends Io essence, In ¶7). Decl., – anaddresswhichhesaysacquiredfrom Yahoo!usingthepseudonym “JohnDoe.”(Ruoff “[email protected]” email the address and “FauxUser99” pseudonym the using account presiden vice its that out points Io Here, account. new a with reappeared fact, in has, user disingenuous a if discover to Veoh for way no is there that argues but infringers, repeat locate to obliged not is Veoh that agrees Io 72:14-23)). Depo., (See process.” error-prone “an as discontinued was practice . at 1111 (citing H.R. Rep., at 61 (1998) (emphasis (1998) at61 Rep., added). H.R. (citing 1111 at . standard of[§512](c).”). knowledge . . . the undermine “to intended not is 512(i) (Section 61 at Rep., history. legislative by supported is statute the of interpretation This immunity meaningless. of be grant would 512(c)’s § 512(c), § in specified those than other circumstances under users terminate to providers service require Were to we 512(c)(3). § of requirements meeting the claimed infringement of notification received has (3) or apparent, is activity infringing from which circumstances or facts of aware is (2) knowledge, actual has (1) it when material” the to, access disable remove, or to “expeditiously acts it if 512(c) § under relief” ifitdoesnotknowofinfringement monetary for liable be not shall provider service “[a] that states 512(c) Section infringement repeat of evidence for users its police affirmatively not infringers.” “repeat are who users terminate provider service a that requires only It act. to providers service for “appropriate” is it when clarify not does itself 512(i) Section appropriate.” “when users terminates it if Ninth implementation, the provider’s service a of reasonableness the to With respect repeat prevent not does it because fails policy Veoh’s that contends nevertheless Io To identify and terminate repeat infringers, a service provider need provider service a infringers, repeat terminate and identify To policy infringer implements repeat its reasonably provider service A 14 ssue notification of claimed copyright violations. claimed copyright of notification ssue udonym email adifferent Atone and address. . A service provider is also not liable not also is provider service A . t, KeithRuoff,wasabletoobtainanewVeoh See Corbis See ScherbDecl.,¶2,Ex.B(Dunning , 351F.Supp.2dat1104. . See H.R. United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page15of33 in fact done so for certain users. See users. certain for so done fact in had but addresses, IP of blocking capable only not was Napster that evidence submitted plaintiff because policy infringer implemented repeat its reasonably Napster whether to as issue triable is decision That addresses. (“IP”) Protocol Internet names by or actual their by users track to must required Veoh be 512(i), section satisfy No. C99-05183,2000WL 573136,(N.D.Cal.,May12,2000),Iocontendsthat,inorderto reasonable, not perfect, policies, the court held that held court the policies, perfect, not reasonable, requires DMCA the that names. Observing different under platforms Amazon’s retail of one on from reappearing infringer prior a prevent not did it because policy infringer Corbis In policy. implementation of the Veoh’s to as issue fact genuine a raise not does name identity user and implementation. There is no material dispute that, while IP addresses identify a particular a identify addresses IP while that, materialdispute no is implementation. There means of more a reasonable is effective addresses IP their blocking that or identity implementation. Veoh’s of reasonableness the to as materialfact of issue ope to able was he that fact the and, blocked; been have should who infringer repeat a is Ruoff Mr. that indication no is There evidence. not is so may done have infringer repeat a that possibility hypothetical the about supposition Its happen. to that allowed intentionally has Veoh much that less pretenses, false under account implemented Amazon. Id by been have could access infringer’s repeat the means denying of reasonable and more effective ope to infringer repeat the allowed intentionally policy.” 351F.Supp.2dat1104.There,plaintiffpresentednoevidencethatAmazon implementation of Amazon’stermination procedural the ofregarding fact question legitimate a create itself, by not, does name identity user and different a under zShops on appeared Moreover, the hypothetical possibility that a rogue user might reappear under a different a under might reappear user rogue a that possibility hypothetical the Moreover, Here, Io has presented no evidence suggesting that tracking (or verifying) users’ actual users’ verifying) (or tracking that suggesting evidence no presented has Io Here, Inc. Napster, v. Inc. Records, A&M fromdistrict, this decision unpublished an to Citing new a established fact, in has, infringer repeat a that evidence no presented has Io Here, , plaintiff alleged that Amazon failed to reasonably implement repeat its reasonably to Amazon failed that alleged plaintiff , . at1103-04. id . at *9-10. at . readily distinguishable. There, the court found a found court the There, distinguishable. readily n a second account does not give rise to a genuine a to rise give not does account second a n 15 n newaccounts.Nordidplaintiffsuggestthata “[t]he mere fact that [the repeat infringer] repeat [the merethat fact “[t]he , United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page16of33 subject to reasonable dispute. reasonable to subject is matter a that not is This multiple users. by may shared be address IP an that fact the to (emphasis added). (emphasis particular a of address the specify to used are that Seescandy.Com members) samegenerally maythe See computer. who share family (e.g., users between distinguish not do they Internet, the to computer connected controlled or operated by or for the service provi service the for or by operated or controlled user a of direction the at storage the of reason by DMCA Section512(c)SafeHarbor C. 512(c). Section manner. reasonable a in policy infringer implements repeat Veoh its whether to as materialfact of issue genuine a raising evidence harbor safe for qualify to requirements threshold user. any by uploaded frombeing ever content that blocks permanently and infringing as identified been has that content track does Veoh However, infringers. track not does it because harbor safe for qualify such issue to necessary information collecting from owners copyright prevent actively not does (c) and notifications, DMCA-compliant with dealing for procedure a has system, (b) notification working a has (a) Veoh that shows evidence infringement.” ofthe knowledge Id had it when respond to failed provider service the if only unreasonable is policy “[a] Instead, 1109-10. at F.3d 488 user police affirmatively or to way particular 8 DMCA Section 512(c) limits a service provider’s limits service a 512(c) Section DMCA under harbor safe for qualifies Veoh whether question the to turns now court The the satisfies it that evidence presented has Veoh that finds court the Accordingly, a in users track to providers service require not does 512(i) section point, the to More The court takes judicial notice of the Wikipedia definition of “IP address” as address” “IP of definition Wikipedia the of notice judicial takes court The , 185F.R.D.573,575(N.D.Cal.1999)(IPaddresses“areaseriesofnumbers 8 s for evidence of repeat infringement. See infringement. repeat of evidence for s notices. Plaintiffsaysthatdefendantdoesnot 16 undertheDMCA.Plaintiffhasnotpresented der.” 17U.S.C.§512(c).Aserviceprovider of material that resides on a systemnetwork a or on resides materialthat of machine . at 1113. Here, the uncontroverted the Here, 1113. at . liability “for infringement of copyright of infringement “for liability connected to the Internet.”) the to connected Columbia Ins. Co.v. CCBill , United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page17of33 dispute that Veoh has done so. done has Veoh that dispute agent to receive notification of alleged copyri alleged of notification receive to agent system ornetwork.17U.S.C.§512(c)(1).The provider’s service a on residing material” of user a of direction the at storage the of reason turn. in contentions these of each address will court The from activities. benefit such financial direct a obtains and activity infringing the control to ability and right the has Veoh (c) and activity; infringing of apparent aware was Veoh (b) user; a of direction systemthe at Veoh’s on stored not were question in materials the (a) because 512(c) if it: if 512(c) Section under harbor safe for qualifies then 512(i) Section of conditions meetsthreshold the that it does – that it does not receive a financial benefit directly attributable to the infringing activity. infringing the to attributable directly benefit financial a receive not does it that – does it if – or activity, infringing the control to ability and right the have not does either (3) and notice; DMCA-compliant received has (c) or apparent, is activity infringing from which circumstances or facts of aware is (b) knowledge, actual has (a) it materialwhen the to access disable remove to or expeditiously acts (2) or infringement; of know not does (1) it if 512(c) section 17 U.S.C.§512(c)(1)(A)-(C). 9 1. “At the Direction of aUser” of Direction the “At safe provides 512(c) section above, stated As 1. According toplaintiff,Veohdoesnotqua activity. infringing of subject the be to or infringing be claimed to is materialthat the to, access disable remove, or to expeditiously responds (3), paragraph in described as claimed infringement of notification upon (C) and activity; such control to ability and right the has provider service the which in case a in activity, infringing the to attributable directly benefit financial a receive not does (B) material; the to, access disable remove, or to expeditiously acts awareness, or knowledge such obtaining upon (iii) or apparent; is activity infringing from which circumstances or facts of aware not is knowledge, actual such of absence the in (ii) infringing; is systemnetwork or the materialon the using activity an materialor the that knowledge actual have not does (A)(i) Additionally, Section 512(c)(2) requires service providers to designate an designate to providers service requires 512(c)(2) Section Additionally, 9 In essence, a service provider is eligible for safe harbor under harbor safe for eligible is provider service a essence, In ght violations. As noted above, there is no is there above, noted As violations. ght 17 legislative history indicates that such storage such that indicates history legislative lify for safe harbor under Section 512(c) Section under harbor safe for lify harbor “for infringement of a copyright by infringement ofacopyright “for harbor United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page18of33 105-551 (II), at 53 (1998)). 53 at (II), 105-551 Inc. Group., CoStar user.’” a of direction the at not and decisions or acts own its through provider service the for or by operated system network or the on resides ‘that “material is harbor safe 512(c)’s from Section Excluded (1998)). 53 at (II), 105-551 Rep. H.R. users.” of direction the at materialmay posted forum which be in other or chatroom, a for site, web user’s a for space server example,“providing of way by includes, 512(c) safe harbor on this basis. this on harbor safe 512(c) from Section disqualified not is Veoh that concludes court this presented, record the on Based impression. matter first a of be to appears this business, Veoh’s of context the In website. its on content user-submitted to access facilitate that functions automated of because harbor safe 512(c)’s from Section disqualified is Veoh whether is issue the from them.drawn Essentially, website. its to submitted content to access facilitate to used are files still-image and Flash the because harbor safe 512(c) Section the within falls it that maintains Veoh files. video upload they when of users volition the at entirely initiated process encoding automated of an result the are files these that maintains Veoh Nonetheless, fromcontent. files still-image user-submitted and storage. just not and themlists), into organizing and content indexing by (e.g., them means a distribution as of uses Veoh because files these of not) or (automated creation the protect to intended not was 512(c) Section that argues Io sense. possible broadest the in except files, these create to Veoh direct or instruct never users website, its on available freely may Veoh videos makethat their agreeing by that, contends further system. It Veoh’s to videos upload they when image files still- and Flash the possess or create themselves not do users that asserts it Here, decisions. di the system “at Veoh’s on stored not are process There is no apparent dispute as to the material facts – only as to the conclusions to be to conclusions the to as only – materialfacts the to as dispute apparent no is There third-part using that, deny not does Defendant publication the during created screencaps and files Flash the that contends Plaintiff 18 rection of a user,” but by Veoh’s own acts and ownacts byVeoh’s but auser,” of rection , 164F.Supp.2dat701(quotingH.R.Rep. y software, its system creates the Flash the system creates its software, y United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page19of33 content of the material the of content choosing, user’s the materialof of user, a by specified points among or communications, between online digital for connections of providing or routing, transmission, the offering “meansentity an 512(a), Section under falling providers service of “serviceprovider.”17U.S.C.§512(k). Perhaps section.”). this applying of purposes for functions distinct and separate describe (d) and (c), (b), (a), (“Subsections 512(n) § U.S.C. 512(a) and those functions addressed by Section Section by addressed functions those and 512(a) Section under functions only” “conduit so-called between distinguishes that way a in structured limited to not are 512(c) Section under harbor safe court held that defendant nonetheless satisfied th satisfied nonetheless defendant that held court copyright were obviously which or estate real depict not did that photos any is, that – criteria met that defendant’s those only website the to employees Defendant’s thesubmitted reviewed briefly 2001). andposted Md. photos (D. 688 Supp.2d F. system. 164 defendant’s the on folder a to photos estate real upload to subscribers website. InCoStarGroup,Inc.v.LoopNet, them defendant’s to posting before ofmaterials submitted some in review engaged employees its when even fromharbor safe precluded not was provider service a case, one least at In content. user-submitted of processing automated its of virtue by 512(c) Section under harbor unambiguously. and expressly so said have would it information, user-submitted of modification provider’s service a to as limitation a include to intended Congress Had 512(k)(1)(B). § U.S.C. 17 (A).” subparagraph in described entity an includes and therefor, facilities of operator the or access, network or services online of means provider a provider’ term ‘service “the Instead, Veoh. to applies agree parties the which provider,” “service of definition broader To begin, the structure and language ofOCI language and structure the begin, To Moreover, caselaw also supports the conclusion that Veoh is not precluded from safe precluded not is Veoh that conclusion the supports also caselaw Moreover, the in included materialis of modification the to as limitation such no contrast, By as sent or received.” Id received.” or sent as The narrower definition, which pertains only to only pertains which definition, narrower The ed by a third-party would not be posted. The posted. be not would third-party a by ed most notably, OCILLAcontainstwodefinitions ., § 512(k)(1)(A) (emphasis added). (emphasis 512(k)(1)(A) § ., 19 , the defendant offered a service that enabled that service a offered defendant the , e requirement that material be stored at the at stored materialbe that requirement e 512(c) (and other subsections as well). See well). as subsections other (and 512(c) merely storing material. The statute itself is itself statute The material. merely storing LLA indicate that service providers seeking providers service that indicate LLA without modification to the to modification without 17 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page20of33 selects the software parameters for the process from a range of default values set by the third- the by set values default of from range a process the for parameters software the selects pre- Veoh users. its to accessible readily is format a that in it recasts and content user-submitted Id DMCA. the of goals the furthered that function simply employees performed “gateway” a defendant’s that and of users volition the at instance, first the in uploaded, were photos the that concluded it essence, In user. a of direction forego the DMCA notice provisions . . . stripped it of the most powerful evidence of a service a of evidence most the of powerful it stripped . . . provisions notice DMCA the forego also see (C); and 512(c)(1)(A) See issue. at activity infringing alleged the of knowledge actual lacked Veoh that Veoh ofanyclaimed copyrightinfringement. T (1998)). 1-2 at 105-190, Ass’n Service Int’l VISA v. Inc. 10, Perfect age.’” digital the in education and development, commerce, communications, research, electronic of expansion worldwide and development robust the ‘facilitate to was DMCA] f these of creation automated the through harbor safe lose not does Veoh that finds court this website, its materialon to access user facilitating of means a is this Inasmuch as conduct.”). volitional no in engages automatically system, which a command a to issuing directly and systemmake copy, to the copying the operates volitionally then human a who to employee, making request a between exists difference significant a (“Indetermining 2008) 4, WLAug. Cir., (2d ‘makes’2008 *9 whoactually at 2952614 acopy, Network LP,LLPv.CSCHoldings,Inc. See users. of Veoh’s volition the at entirely initiated is which process automated an through uploaded are files video Instead, completed. is upload the before files the select or preview it does Nor files. of uploading the supervise or participate actively itself not does Veoh (See software. party 2. Actual Knowledge of Infringing Activity Infringing of Knowledge Actual to notice no provided plaintiff action, instant the filed it before that, undisputed is It 2. processes automatically software system a whereby simply has established Veoh Here, DunningDecl.ISODefendant’sOpp.to CorbisCorp. , 494F.3d788,794n.2(9thCir.2007)(quotingS.Rep. , —F.3d—,Nos.07-1480-cv(L),07-1511-cv(CON), . at702. , 351F.Supp.2dat1107 (“[Plaintiff’s]decisionto 20 hus, there is no question on the record presented record the on question no is there hus, iles. “[O]neofthestatedpurposes[the Plaintiff’s MSJ, ¶¶ 3-4). But 3-4). ¶¶ MSJ, Plaintiff’s TheCartoon 17U.S.C.§ United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page21of33 contained Io’s copyright notices. (See notices. copyright Io’s contained question. in content submit to the authority have not did user uploading the that flag” “red a was 2257(f)(4) § U.S.C. 18 under required labels of absence ( further, and, created professionally were question in works the that obvious was it that says plaintiff Additionally, works. the of ownership registra copyright its 205(c), § U.S.C. 17 under (quoting H.R.Rep.No.105-551,pt.2,at57). to take action with regard to infringing material infringing to regard with action take to fails it “if harbor may safe lose provider service a test, flag” “red so-called this Under activity. omitted). infringe of notice actual – knowledge provider’s impute the requisite level of knowledge or awareness to Veoh. Indeed, with the video the with Indeed, Veoh. to awareness or knowledge of level requisite impute the to sufficient of infringement flag” “red se per a constitutes ofcontent submitted nature created professionally the that convinced court this is Nor it. ignore, to chose but of, aware was Veoh that inferred be can it from which evidence no is there clip, the minutesinto several trademark Ex. G(RuoffDepo.,55:13-16,56:19-57:13)).Although ey blind a ‘turned provider service a that evidence Id aware.” was it which of factors blatant of face the in proceeded deliberately provider service the whether is question the “Instead Corp. Corbis circumstances.’” the all given deduced have would person reasonable a ‘what not is question “the awareness, such has provider service a whether determining In 512(c)(1)(A)(ii)). CCBill apparent.’” is activity infringing which See RuoffDecl.ISOPlaintiff’sMSJ,¶¶15-16,Ex.F).Inanyevent,Iomaintains thatthe , 351F.Supp.2dat1108(quoting3Nimmer on Io argues that there were several “red flags” of obvious infringement here. Io says that, says Io here. infringement obvious of flags” “red several were there that argues Io However, none of the allegedly infri allegedly the of none However, 3. Apparent Infringing Activity Infringing Apparent wasawar Veoh that contends Io Nonetheless, 3. ScherbDecl.,¶2,Ex.J(Io’sresponsetoRFANo. 58); . In other words, “apparent knowledge requires knowledge “apparent words, other In . nging video files uploaded by Veoh’s users by Veoh’s uploaded files video nging 21 tions provided constructive knowledge as to its to as knowledge constructive provided tions , 488F.3dat1114(quoting17U.S.C.§ when it is ‘aware of facts or circumstances from circumstances or facts of ‘aware is it when ment from the copyright holder.”) (citation holder.”) ment from copyright the that one of them contained Io’s trademark. trademark. Io’s them of contained one that e to ‘red flags’ of obvious infringement.’” Id infringement.’” obvious of flags’ ‘red to e e of several signs of apparent infringing apparent of signs several of e Copyright, §12B.04[A][1],at12B-49). one of the works did contain plaintiff’s contain did works ofthe one . United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page22of33 to suggest that Veoh was aware of, but chose to ignore, this circumstance. this ignore, to chose but of, aware was Veoh that suggest to evidence no is there rate, any At harbor. safe DMCA the motion to as Veoh’s to opposition Ruoff Decl.ISOPlaintiff’s MSJ¶21).Plainti system. (See them defendant’s to much upload less works, Io’s view to permitted legally not was someone who i.e., – old 17-year a was user the that indicates Veoh to works its statute to which Io refers – section 2257 of the Child Protection and Obscenity Enforcement Act Enforcement Obscenity and Protection Child the of 2257 section – refers Io which to statute under 18U.S.C.§2257wasa“redflag”ofapparent themselves. amateur productions. and “professional” between distinction any, if may little, there be today, public general the to available equipment CCBill provider.” service a on illegal actually are photographs whether determining of burden the place not “[w]e do “stolen,” or them “illegal” as describes and nature” by titillating are that pictures being were copyrights plaintiff’s that awareness or knowledge of level requisite the had Veoh whether to as materialfact of issue genuine a to rise give not does labels required of absence the here, presented circumstances the Under laws. those of violation a was there whether concern not does court this matter before the However, awarethatfede was Veoh whether to as question question. in clips video the on labels requisite omitted the have material would explicit sexually of producer legitimate no that known have should therefore Veoh that argues D Sperlein Suppl. 195:19-196:3; at Depo. (Papa (See law. this of aware was generally Veoh that See located. are records those where indicating statement a with work such each label to and depicted performers the to as records maintaincertain materialto explicit sexually of producers requires – 1988 of 10 , 488F.3dat1114. Viewing the evidence in the light most favorable to plaintiff, it has, at best, raised a fact a raised best, at has, it plaintiff, to most light favorable the in evidence the Viewing works the of nature explicit sexually the to as arguments Io’s are unavailing Similarly 10 Io nevertheless contends that the absence of labels on the material in question materialin the on labels of absence the that contends nevertheless Io Plaintiff claims that the user profile page for one of the users who submitted who users of the for one page profile user the claims that Plaintiff 18 U.S.C. § 2257(a) and (f). There is some is There and(f). intherecord indication §2257(a) U.S.C. 18 ff did not raise this argument in support of its of support argumentin this raise not did ff 22 ecl., Ex.D(StynDepo.at45:1-48:13)).Io SperleinDecl.ISOPlaintiff’sMSJ,¶2,Ex.A violated. Even“[w]henawebsitetrafficsin ral labeling laws might have been violated. violated. been might have laws labeling ral copyright infringement. In essence, the essence, In infringement. copyright United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page23of33 situation in that Veoh independently removed all adult content from its website before it before from website its content adult removed all independently Veoh that in situation also see See material. the to, access disable remove, or to expeditiously acted it if protection harbor safe lose not would Veoh question, in activity where it (a) has the right and ability to control the infringing activity and (b) receives a financial a receives (b) and activity infringing the control to ability and right the has (a) it where activity. infringing of awareness to access remove disable to or expeditiously flags” “red ignore, to chose deliberately but of, (Id Veoh. to notice infringement copyright a submitting for instructions with link a to owners copyright at displayed prominently notice, a contains itself copyright contain to “appears for choice a contains longer no feature It!” “Flag the on reasons of list the because infringement suggesting facts (Id etc.). content, obscene content, explicit sexually content, misrated (e.g., reasons of fromlist set a selecting is, that – it “flagging” by attention Veoh’s to content certain bring to users enables that feature It!” “Flag a has website its that out points Veoh Here, website. its on content about complaints other 9). ¶ Decl. (Dunning thereafter). days few a within (or received is notice same the the day on necessary as content removes noticed and responds it infringement, copyright of notice DMCA-compliant violations. claimed copyright any of notice received 4. Acts Expeditiously to Remove or Disable Access toMaterial Access orDisable Remove to Expeditiously Acts 4. 5. Right and Ability to Control Infringing Activity Infringing Control to Ability and Right harbor safe 512(c)’s Section of protection the loses nonetheless provider service A 5. aware was Veoh that materialfact of issue genuine a raising evidence no sum,is In there promptlyinvestigates also it that says Veoh notices, DMCA to responding to addition In receives it when that shows Veoh by submitted evidence undisputed Nevertheless, infringing oftheallegedly orawareness knowledge assumingsufficient had Even Veoh CorbisCorp. .). , 351 F. Supp.2d at 1108. The instant action presents asomewhat presents action Theinstant unusual 1108. at Supp.2d F. 351 , ., Ex. E). Plaintiff argues that Veoh has willfully blinded itself to itself blinded willfully has Veoh that argues Plaintiff E). Ex. ., infringing material upon obtaining knowledge or knowledge obtaining materialupon infringing 17 U.S.C. §§ 512(c)(1)(A)(iii) and 512(c)(1)(C); and 512(c)(1)(A)(iii) §§ U.S.C. 17 23 of infringement or that Veoh fails toact infringementfails Veoh of orthat the top of the “Flag It!” dialog box, directing box, dialog It!” “Flag the of top the ed material.” Yet, the “Flag It!” feature It!” “Flag the Yet, material.” ed United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page24of33 be interpreted consistent with the similarly-worded common law standard for vicarious for common standard similarly-worded law the with consistent interpreted be common law.See with consistently interpreted be to are DMCA the elementsunder these that indicated has common of the out standard grew law requirements Corp. Corbis denied.” be to harbor safe met the for elementsmust “Both be 512(c)(1)(B). § U.S.C. 17 activity. such to attributable directly benefit whether Veoh has the right and ability to control it it control to ability and right the has Veoh whether accounts. offending terminating and removingcontent by policies its enforced has Veoh that and compliance for files video of checks” “spot occasional systemconducting by its Plaintiff’s MSJ¶9,Exs.BandC).Plaintiffem (See material. spidering (g) and areas protected or threatening defaming, abusing, harassing, (e) material, of sources misrepresenting (d) people, other mail,impersonating (c) junk or proposals ot of rights property intellectual the violating from (a) users prohibit which namely, – policies website its on conduct other and illegal of host a in from engaging users prohibit that policies enforced and established has Veoh because here 10, Inc.v.Amazon.com, Inc. Perfect so.” do to ability practical the as well as conduct, infringing limitdirectly or the stop Grokster Ltd. Grokster, v. Inc. Studios, Metro-Goldwyn-Mayer limit or it.” stop to right a exercise to declining while infringement activity. such control to ability and right the have not does defendant that finds court this activity, infringing from alleged the benefit financial direct a received Veoh that deciding) (without assuming even purposes, present For liability.”). copyright However, the plain language of section 512(c) indicates that the pertinent inquiry is not is inquiry pertinent the that indicates 512(c) section of language plain the However, present are control” to ability and “right requisite elementsof the that contends Plaintiff formulated SupremeAs the by one“i Court, , a defendant exercises control over a direct infringer when he has both a legal right to right legal a both has he when infringer direct a over control exercises defendant a , CCBill , 488 F.3d at 1117 (“[W]eshould benefit’ 1117 financial at ‘direct F.3d that 488 hold , , 508F.3d1146,1173(9thCir.2007). , 545U.S.913,930,125S.Ct.2764,2766(2005).“Thus,under hers, (b) making unsolicited offers, sending ads, sending offers, making unsolicited (b) hers, 24 defrauding others, (f) linking to password to linking (f) others, defrauding phasizes that Veoh exercises the right to police to right the exercises Veoh that phasizes PapaDecl.¶¶5-6,Exs.A-H;RuoffISO system , 351F.Supp.2dat1109.These for vicarious liability, and the Ninth Circuit Ninth the and liability, for vicarious nfringes vicariously by profiting from direct profiting by vicariously nfringes , but rather, whether it has the right the has it whether rather, but , United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page25of33 F. Supp.2dat1110;CoStarGroup,Inc. be closed only to those service providers who, among other things, have the “right and ability to ability and “right the have things, among other who, providers service those to only closed be operated or controlled See same. the and one not are two the the control to ability and 1893635 at*3(C.D.Cal., June20,2007). Inc. YouTube, v. Tur material.” copyrighted limit filter to or ability some antecedent “presupposes control” to ability and “right requisite the that observed has is court this although define, to somewhathard is Inc. Ventures, Cybernet more” “something required. is instead, that, concluded has court one licensors, trademark the involving cases infringement from patent Hendrickson inconsistent: internally DMCA F. Supp.2d1082,1093-94(C.D.Cal.2001).Indeed,acontraryholdingwouldrenderthe system. See its on stored or website its on posted materials to remove access or block to provider service a of simply mean ability cannot the DMCA, the in used is concept “ the control” 17U.S.C.§512(c)(1)(applyingsafeharborto Precisely what constitutes the requisite right and ability to control in the present context present the in control to ability and right requisite the constitutes what Precisely the as activity, infringing control to ability and right the that held have courts Moreover, systemnetwork. or its of control provider’s service a presupposes statute the begin, To , 165 F. Supp.2d at 1093-94 (internal quotes and citations omitted). Borrowing omitted). citations and quotes (internal 1093-94 at Supp.2d F. 165 , infringing activity infringing are specifically required by the DMCA. the by required specifically are that acts in engages it because DMCA the of provision harbor safe the immunity loses under provider service a that hold to courts for intended have not could Congress infringers. repeat are who system network or provider’s service the of [users] of circumstances appropriate in termination the for provides that implemented policy a . . . reasonably liability on limitations the that provides also DMCA The claimed infringement. of notice receives it system when its on posted materials to access block remove to or provider service a requires specifically DMCA The by or for the service provider.”) (emphasis added). The safe harbor will harbor safe The added). (emphasis provider.”) service the for or by , 213F.Supp.2dat1181-82. infringing activity infringing only apply to a service provider that has adopted and adopted has that provider service a to apply .” 17 U.S.C. § 512(c)(1)(B) (emphasis 512(c)(1)(B) § added). U.S.C. 17 .” , 164F.Supp.2dat704;Hendriksonv.eBay,Inc. . Under the facts and circumstances presented here, presented circumstances and facts the Under . intent requirement for contributory liability of liability contributory for requirement intent 25 not without some guidance. At least one court one least At some guidance. without not “material that resides on a systemnetwork a or on resides that “material , No.CV064436,2007WL CorbisCorp. , 165 , 351 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page26of33 control were found where defendant had the right to terminate vendors for any reason, promoted reason, any for vendors terminate to right the had defendant where found were control c infringing of sales vendors’ third-party for liable was meet swap proprietor, a defendant, the claimed that It music recordings. certain in Inc. Inc. Auction, Hill Cherry v. material Id material copyrighted of exchange the systemprevent to its police to failed nonetheless but indices, search its on material listed infringing locate to ability the had and reason any for accounts user terminate to right the system, reserved its to access controlled Napster merits where the su were plaintiffs There, added). (emphasis to eye blind a Turning extent. fullest its to must exercised be police to right reserved the liability, of vicarious Fonovisa Id supervise.” to ability and right of the evidence is whatsoever reason any for environment particular a to access infringers’ block to ability “[t]he that stated court The charge. of free amongusers and its music between copyrighted of transmission the facilitated F.3d 1004(9thCir.2001).Napster See infringement.” of enterprise mutual a in engaged “were vendors infringing the and meet swap proprietor the essence, In agreed toprovidetheSheriffwithinform Id continued. sales infringing that defendant the notified County Sheriffpreviouslyseizedthousandsof copyrights plaintiff’s of violation in recordings wa defendant the that dispute no was there Id meet swap area. the to access customers’ meet,controlled and swap the , 239F.3d1004(9thCir.2001).InFonovisa Such a conclusion does not appear to be inconsistent with precedent set in Fonovisa, Inc. Fonovisa, in set precedent with inconsistent be to appear not does conclusion a Such Fonovisa , 76 F.3d at 262). However, the court went on to explain that “[t]o escape imposition escape “[t]o that explain to on went court the However, 262). at F.3d 76 , . at1023-24. detectable was extended to the online context in A&M Records, Inc. v. Napster, Inc. Napster, v. Inc. Records, A&M in context online the to extended was acts of infringement for the sake of profit gives rise to liability.” Id liability.” to rise gives of profit sake for ofthe infringement acts , 76F.3d259(9thCir.1996)andA&MRecords,Inc.v.Napster, VISA Int’l Services Ass’n Services Int’l VISA concerned the Internet service infamous for its software that software its infamousfor service Internet the concerned ation about each vendor, but did not do so. Id so. do not did but vendor, each about ation s aware that vendors were selling counterfeit selling were vendors that aware s ccessful in establishing a likelihood of success on success of likelihood a establishing in ccessful ounterfeit recordings. Sufficient elementsof Sufficient recordings. ounterfeit counterfeit recordings from the swap meet from swap and the recordings counterfeit 26 and trademarks. Indeed, it was alleged that the that alleged was it Indeed, trademarks. and , the plaintiff owned copyrights and trademarks and copyrights owned plaintiff the , . at 261. The defendant evidently defendant The 261. at . , 494F.3dat798. . at262.Notably, . at 1023 (citing 1023 at . . at264. , 239 . United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page27of33 the proliferation of identical sites with sites of identical proliferation the prohibited and advice, extensive websites those gave network, its within websites prescreened it where website its to access removeblock to or mere more”the ability “something than 75. In VISA Int’l Service Ass’n Service Int’l VISA In 75. 1173- at F.3d 508 activities. their police to ability practical the lacked and websites third-party the with relationships contractual have not did Google where websites third-party of activity Amazon.com, Inc. example,in For activity. infringing control to ability and right requisite the have to website, and by the fact that users are required to agree that Veoh shall have the irrevocable and irrevocable the have shall Veoh that agree to required are users that fact the by and website, of its portions on videos certain feature to ability Veoh’s files, of those indexing image the files, still- and Flash of the creation the by evidenced further is control requisite the that argues It Internet). the to connected still are computers their (assuming drives hard users’ its material on such to access disable even can and materialfrom website, its remove to infringing ability the has reason, any for accounts user terminate to right the reserves servers, its on files video of index central a maintains registration, user requiring system network closed a operates Veoh Napster in 1181-82. at Id ability.” or right this have not do Defendants and affectit, just not infringement, to ability and right must the have defendant the . . . attach to liability vicarious “[f]or that concluded court payment systems,the its to access blocking by 802-05. at F.3d 494 activity. infringing alleged the in role no had and websites particular to or Internet the to access block to ability the lacked t of dismissal the Affirming material online. infringing of purchase the facilitated payment services card credit its because infringement By contrast, an on-line age verification service was found to have the requisite the have to found was service verification age on-line an contrast, By More recently in the electronic commerce context, other businesses have been found not found been have businesses commerceother context, electronic the in recently More In the instant case, plaintiff maintains that Veoh has precisely the kind of control found control of kind the precisely has Veoh that maintains plaintiff case, instant the In and goes even further than the defendant in Cybernet Ventures Cybernet in defendant the than further even goes and , Google was found not to have the right and ability to control the infringing the control to ability and right the have to not found was Google , , plaintiff alleged that Visa was secondarily liable for copyright for liable secondarily was Visa that alleged plaintiff , in its network. Cybernet Ventures, Inc. Ventures, Cybernet network. its in hose claims, the Ninth Circuit concluded that Visa that concluded Circuit Ninth claims, the hose 27 Although Visa could exert financial pressure financial exert could Visa Although supervise and control . It points out that out points It . , 213F.Supp.2d the . at805. United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page28of33 of the files, Io itself was not able to readily id readily to able not was itself Io files, of the Decl. ISOPlaintiff’sMSJ,¶¶13-14andExhs. seealso n.5; 1020 at F.3d 239 It initially alleged copyright violations as to eight films. (See eight to as violations copyright alleged initially It its system was directly intertwined with its ability to control infringing activity. See activity. infringing control to ability its with intertwined directly system was its over control its and infringement, copyright for facilities and site the provide to solely existed E). and A Exs. ¶5, Decl. (Papa website. its on materialfreely submitted distribute to right perpetual resembling plaintiff’s works; and, Io did not provide Veoh with its titles to search. (See search. to titles its with Veoh provide not did Io and, works; plaintiff’s resembling terminate and identify to ability an to equate not does index its control to ability Veoh’s material), pirated of comprisedentirely was index (whose Napster unlike However, servers. its on videos of index central a maintains Veoh True, question. in content infringing the identified accurately feasible. be would file ofevery comprehensive review a that conclude could juror reasonable no that finds court this numbers;and, those refute users. (DunningDecl.inOpp.toPlaintiff’sMSJ, from files video of thousands of hundreds received has it that indicating evidence submitted has Veoh However, published. is it before submission every prescreen to required be should Veoh that suggests Plaintiff uploaded. is it before upload to choose users content what control can Veoh that evidence no is there system. And, its on infringement copyright aims encourage to Veoh that suggestion no is there Napster, Unlike activity. infringing control to ability and right infringement.”). the admitted – expressly creator program’s the as and – knew student college interested every virtually Even if such a review were feasible, there is no assurance that Veoh could have could Veoh that assurance no is there feasible, were review a such if Even the to equate not system does its control to ability and right Veoh’s contrast, by Here, Napster respect. significant one least at in from Napster distinct is Veoh However, infringing sole purpose sole videos. For the most part, the files in question did not bear titles bear not did question in files mostthe the part, For videos. of the Napster program aforum Napster toprovide the was of copyright foreasy VISA Int’l Service Ass’n Service Int’l VISA entify which of its works allegedly were infringed. infringed. were allegedly works its of which entify D & E). The record suggests that, upon review upon that, suggests record The E). & D 28 ¶ 6). Plaintiff has presented no evidence to evidence no presented has Plaintiff 6). ¶ , 494F.3dat799n.10(“Infact,as Complaint, ¶22). However, in the in However, Complaint, ¶22). Napster Ruoff , United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page29of33 manufacturer andauthor.Cal.Pen. Code§653w(a). the identify not does that work embodiment” audiovisual an of “physical a of possession Plaintiff has presented no evidence raising a ge a raising evidence no presented has Plaintiff architecture.”). system’scurrent the by cabined is police to ability’ and ‘right “reserved See architecture. its by permitted extent fullest the to I). Ex. 3, (See others. three filmsadded and those of one dropped it discovery, of course employees or to decrease its operations and limit its business to a manageable numberusers manageable of a to limitbusiness and its operations its decrease to or employees more hire either to required be should Veoh then business, volume its of current the given that contends plaintiff Alternatively, statutes. those of requirements the of view in apparent readily been have should question in conduct infringing allegedly the much as that and require above) discussed law labeling federal (the 653w § Code Penal California that asserts further It file. given a upload to authority user’s submitting the as well as producer, the user, submitting the of addresses names the and confirming and obtaining by videos incoming all of source the verified have should Veoh that contends it Specifically, site. its on from occurring activity infringing prevent website. its on infringement to steps taken has Veoh that indicates this c same the infringing prevents also technology identif been has content Once 98:3-7). Vol.1, (See offenders. repeat of accounts the terminates and again), uploaded from same being that content prevents (and drives hard users’ its system and its on content infringing terminates notices, infringement to promptly responds content, infringing blatantly down taken has Veoh that shows presented record the above, discussed As violations. policy for accounts user of termination the materialand infringing allegedly to access of termination the through including terms use, its of of enforcement 11 Plaintiff nevertheless argues that Veoh should have changed its business operations to operations business its changed have should Veoh that argues nevertheless Plaintiff system its police to failed has Veoh that indication no is most there importantly, Perhaps Briefly stated, California Penal Code section 653w prohibits the knowing the prohibits 653w section Code Penal California stated, Briefly DunningDecl.¶¶10-13;ScherbEx.C(PapaDepo., reduce, not foster, the incidence of copyright of incidence the foster, not reduce, , if Veoh cannot prevent infringement on its site its on infringement prevent cannot Veoh if , ied as infringing, Veoh’s digital fingerprint digital Veoh’s infringing, as ied ontent from ever being uploaded again. All of All again. uploaded frombeing ever ontent 29 nuine issue of material fact as to Veoh’s to as materialfact of issue nuine Napster , 239 F.3d at 1024 (stating that the that (stating 1024 at F.3d 239 , 11 and18U.S.C.§2257 ScherbDecl.¶ United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page30of33 Declining to change business operations is not the same as declining to exercise a right and right a exercise to same declining the as not is operations business change to Declining it. stop to right a exercise to declined Veoh whether is question the Rather infringing. was certaincontent beenawareofthat have Veohshould whether theissue is Nor §2257. U.S.C. exist. to allowed be not should it then fromoccurring, infringement ever prevent cannot Veoh if that, is suggestion not-so-subtle numberIts might that be). (whatever under Section 512(j). Section under relief limited injunctive the is plaintiff to available relief only the 512(c), Section under harbor safe for qualifies Veoh here, presented facts particular the under that, finds court the Because See liability.” mayfrom that copyright arise relief from most monetaryand equitable all providers service eligible protect . . . do “[t]hey liability, question. in activity infringing alleged the to fo qualifies Veoh whether to as issue fact triable no is there that finds court This veoh.com. on activity infringing alleged the control to ability it. S.Rep.No.105-190,at1-2(105thCongress,2dSession1998). commerce, squelch not of electronic growth the facilitate to intended was DMCA The DMCA. the of goals stated the of one to contrary is operations limitbusiness or its reduce to required be material. infringing to access disable remove, or to expeditiously acts and policy user its enforces actively Veoh that materialfact of issue genuine no is there Here, infringers). repeat with deal to procedures” of implement variety a See way. particular a in infringers with deal to providers service require not does DMCA the above, discussed See activity. infringing control to ability on remedies set forth in subsection (a), the court may grant injunctive relief mayinjunctive court grant the (a), subsection in forth remediesset on 12 While the DMCA’s safe harbors do not immunize qualified service providers from providers service immunize not do qualified harbors safe While DMCA’s the and right the had Veoh that materialfact of issue genuine a raised sum,not In has Io 18 and 653w § Code Penal California with compliance Veoh’s not is here issue The With respect to conduct other than that which qualifies for the limitation the for qualifies which that than other conduct to With respect part: relevant in provides 512(j) Section OCILLA CCBill 12 In this case, before it ever received notice of any claimed infringement, any of notice received ever it before case, this In , 488 F.3d at 1109 (“[T]he DMCA permits DMCA (“[T]he 1109 to at serviceproviders F.3d 488 , Amazon.com, Inc. 30 r safe harbor under section 512(c) with respect with 512(c) section under harbor safe r Further, plaintiff’s suggestion that Veoh must Veoh that suggestion plaintiff’s Further, CorbisCorp. , 508F.3dat1175.Moreover,as , 351F.Supp.2dat1098-99. United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page31of33 judgment. motionsummary for plaintiff’s in raised issues the reach not does court this merely advisory, be would infringement copyright for liability Veoh’s to as opinion an moot. is Because entitled material such onveoh.com. Iowouldbe allows which reliefto longer anyinjunctive Thus, no it and works, plaintiff’s of files video including content, adult removed all independently Veoh limit incidents of infringement on its website and works diligently to keep unauthorized works unauthorized keep to diligently works and website its on of infringement limit incidents infringement, Veohha copyright encouraging The place. takes that infringement copyright with deal to steps appropriate takes Veoh whether is issue the Rather, cannot). it if business its losing of cost the (at website its on copyrights third-party policing of burden entire the shoulder fi not does court the Nevertheless, protection. may claim its providers service scrupulous than less that wide so harbor safe the of bounds the push to intended not is and case this in facts of combination particular the to confined is here rendered decision the and, world; online the in copyright of protection the to challenges new present also opportunities new these that appreciates court This another. one with 17 U.S.C.§512(j)(1)(A). purpose. that for effective comparably among forms relief the of provider service the to burdensome least the is relief such if location, online particular a at court the of order the in materialspecified copyrighted of infringement restrain or prevent to order. the in specified are that holder account or subscriber the of accounts the terminating by order, the in identified is and activity infringing in engaging is who systemnetwork or provider’s service the of holder account or subscriber a to systemnetwork. or provider’s the on site online particular a at residing activity materialor infringing to forms: mor following or the one of in only provider service a to respect with The ever expanding realm of the Internet provides many new ways for people to connect to people for many ways new provides Internet realm the of expanding ever The (iii) Such other injunctive relief as the court may consider necessary may court consider the as relief injunctive other Such (iii) access from providing provider service the restraining order An (ii) access from providing provider service the retraining order An (i) IV. CONCLUSION record presented demonstrates that, far from far that, demonstrates presented record s a strong DMCA policy, takes active steps to steps active takes policy, DMCA strong a s nd thattheDMCAwasintendedtohaveVeoh 31 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page32of33 summary judgment motion. plaintiff’s in raised issues liability the reach not does court The GRANTED. judgment is here. infringements alleged the for harbor safe to entitlement its establishing in met sum,burden has In its Veoh off website. its Dated: Based ontheforegoing,ITISORDEREDTHATdefendant’smotion forsummary August 27, 2008 V. ORDER UNITED STATES MAGISTRATE JUDGE MAGISTRATE STATES UNITED HOWARD R. LLOYD 32 United States District Court For the Northern District of California 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Case 5:06-cv-03926-HRLDocument117Filed08/27/2008Page33of Counsel are responsible for distributing copies of this document to co-counsel who toco-counsel document ofthis copies have fordistributing responsible are Counsel [email protected] [email protected], Elkin S. Michael [email protected], Scherb Alex Matthew [email protected] [email protected], [email protected] jgolinveaux@ Golinveaux A. Jennifer [email protected] Sperlein Gill Dennis to: mailed electronically Notice 5:06-cv-3926 not registered for e-filing under the court’s CM/ECF program CM/ECF court’s the under e-filing for registered not winston.com, [email protected], 33 .