A New Look at Repeat Offenders and the DMCA

6 10 2008

Here’s a common Web 2.0 model: a company creates an online presence promoting user generated content. Before long, the majority of the content generated by users is copyrighted material. If there’s copyright infringement here, who’s liable? The user? The company? The Internet service provider that makes it all possible?

In Veoh v. IO Group, a recent case from the U.S. District Court for the Northern District of California, this issue was squarely presented. Users of an online video sharing site called Veoh were uploading content owned by a company called IO Group. IO sued Veoh, alleging copyright infringement. Because Veoh did not upload the videos, and was willing to remove infringing videos at the rightsholder’s request, the court ruled for Veoh, reasoning that current U.S. copyright law was “not . . . intended to have Veoh shoulder the entire burden of policing third-party copyrights on its Web site.”

The relevant U.S. law is the Digital Millennium Copyright Act (DMCA), enacted in 1998. Section 512 of the DMCA provides for a number of “safe harbors” exempting online service providers like Veoh from liability for their user’s copyright infringement. The catch is that these service providers must satisfy two prerequisites to fall within the statutory safe harbors. First, they must put in place a policy to terminate the accounts of users who repeatedly infringe copyright. Second, they must accommodate and not interfere with “standard technical measures,” defined as measures copyright owners use to identify or protect copyrighted works.

The issue in this case involved repeat offenders. IO argued that anyone Veoh kicked off the service could rejoin the service with nothing more than a new e-mail account. Since free e-mail accounts are easy to come by, IO argued that their repeat offender provisions weren’t “reasonably implemented” as required the Ninth Circuit in Perfect 10 v. CC Bill. But the court refused to force Veoh to preempt potential repeat offenders in this way, reasoning that “the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place.” In other words, Internet service providers are liable for infringements that have occurred and are occurring (infringements that “take place”), but not future infringements (infringements that have not yet “take[n] place”). The effect is that rightsholders like IO must report each new infringement to protect their content, making the owners, rather than the uploaders or hosts of infringing content, the enforcers of copyright online.

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