The Court of Appeals for the Ninth Circuit Court might re-examine the Digital Millennium Copyright Act (the “DMCA”) copyright infringement safe harbor standards.  The Ninth Circuit ruled last year in UMG vs. Veoh, a case dealing with user-uploaded music videos, that Veoh, a video-sharing website was protected under the safe harbor provision of the DMCA.  Now, in light of the Second Circuit’s decision in Viacom v. YouTube, the Ninth Circuit is reconsidering its Veoh decision.

Until the Viacom decision, the cases had followed parallel paths, albeit on different sides of the country.  In each case, content owners complained that the operators of user-generated content website—YouTube in one case (in New York) and Veoh in the other (in California)—were liable for copyright infringement when their respective users posted infringing content, such as copyrighted musical works and television shows.  At the District Court level, both YouTube and Veoh prevailed.  Each argued that they complied with the notice-and-take-down procedure of the DMCA, 17 U.S.C. § 512(c), promptly removing any infringing content upon proper notification.

In December 2011, the Ninth Circuit affirmed the district court’s judgment in favor of Veoh.  The plaintiffs in the Veoh case subsequently asked for a rehearing.  While that motion was pending, the Second Circuit rendered its opinion in the Viacom case.  Although the Second Circuit adopted some of the Ninth Circuit’s analysis in Veoh, and though it affirmed portions of the district court’s decision, it also remanded the case for further fact finding on some issues, as described in our post below

The Ninth Circuit now has asked for further briefing, as follows:

 1. Actual and “red flag” knowledge

The Second Circuit held:

The difference between actual and red flag knowledge is . . . between  a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement.

Viacom at 31. Does the Second Circuit draw the correct distinction between actual and red flag knowledge? If so, does the distinction affect the disposition of this case?

 2. “Right and ability to control”

Does a service provider have to be aware of the specific infringing material to have the “right and ability to control” the infringing activity? Does importing such a knowledge requirement make it duplicative of § 512(c)(1)(A)? If there is no knowledge requirement, does a copyright holder need to show that a service provider possesses “something more than the ability to remove or block access to materials posted on a service provider’s website” in order to have the right and ability to control infringement?  Id . at 38 (citations and internal quotation marks omitted). If so, what must the copyright holder show? Should this Court adopt the Second Circuit’s resolution of these questions? See id.

Attached are the Ninth Circuit’s December 2011 Decision in Veoh, the Second Circuit’s April 5, 2012 Decision in Viacom and the the Ninth Circuit’s June 7, 2012 Order.