News: The district court in the Northern District of California decided in favor of Veoh, an online video sharing site, holding that it fell within the DMCA safe harbor. Michael Arrington of Tech Crunch has 2 excellent analyses of the decision here and here. One of the key parts of the ruling is that a video sharing site does not become disqualifed from the safe harbor by setting up a system that converts videos into a different (here, Flash) format (the plaintiff porn entertainment company claimed that such conversion showed that Veoh had control over the content). Arrington also lists a number of key parts of the decision on his blog.
Analysis: I am poring over the opinion myself and hope to have a followup soon. The copyright cases against YouTube are in New York, so this precedent is not binding in that jurisdiction. But it is undoubtedly helpful to YouTube’s case there.
UPDATE: Here are some of the most important principles the court appeared to embrace in the Veoh case:
1. A video sharing site doesn’t have the “right and ability” to control infringing activity just by setting up a system where users can upload videos. The site’s control over its system is different from control over the content uploaded by users. Op. at 28.
2. The presence of professional content in videos (without copyright notices) that are posted on video sharing sites do not necessarily create a “red flag” of infringing activity. Op. at 21-22.
3. Court completely rejects argument that Veoh should have prescreened every video finding that practically infeasible (and in any event it’s not required by DMCA). Op. 28
4. The court says that Veoh policed its system as presently architected, and that was reasonable enough under the DMCA. Op. 29 A lot of what Veoh did (e.g., hashing or fingerprinting technology) appears to be what YouTube is doing as well.