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A Safer Harbor in Veoh's Shadow: Expanded DMCA Still Has Limits

Anonymous Coward writes | about a year ago

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An anonymous reader writes "Last week, in a blow to the content industry, the Ninth Circuit granted Veoh a pyrrhic victory against Universal Music Group and clarified the scope of the Digital Millennium Copyright Act’s safe harbor provisions for online service providers. By adopting a position taken by the Second Circuit in Viacom v. YouTube , the decision harmonized the law in two intellectually influential jurisdictions and set the standard in New York and California, national hubs for content creation and technological innovation. Going forward, tech startups will have more room to innovate while facing decreased risk of crippling financial liability. An article by two IP lawyers published today in TechCrunch simplifies and explains the scope of safe harbor protection in light of these rulings:

Generally, these cases show that a platform that leaves content uploads to the discretion of its users, performs processing specifically related to the display of and access to that content, promptly abides by DMCA takedown requests, and does not close its eyes to specifically infringing works can probably take comfort from Section 512(c). . . .

That being said, a service provider is not allowed to simply sit back and wait for a takedown notice if it is aware of specifically infringing material. Some emails presented in the YouTube case suggested that the YouTube founders may have been aware that infringing material on the site yet elected to wait for a takedown notice before removing the material. This was one of the reasons the YouTube case was sent back to the trial court for further proceedings, whereas Veoh had obtained a summary judgment victory [the lesson here as always: bad evidence can rarely be covered up with legal doctrine].

As the article points out, however, there are still limits to the scope of DMCA protection: the Ninth Circuit just decided that even under this new standard, isoHunt could be saved by the safe harbor."
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