UMG v Veoh: Ninth Circuit Affirms DMCA Safe Harbor for Veoh

Copyright Into Infinity
Creative Commons License photo credit: Post-Software

The Ninth Cir­cuit has affirmed the dis­trict court’s deci­sion that Veoh’s user-generated video ser­vice was pro­tected from UMG’s copy­right infringe­ment claims by the DMCA safe har­bor pro­vi­sions.  In a com­pre­hen­sive and mostly well-reasoned 49-page opin­ion, the court method­i­cally rejected each of UMG’s argu­ments as to why the safe har­bor should not apply.  This is the lat­est in a string of deci­sions in which var­i­ous courts have prop­erly held that the DMCA safe har­bor really does mean what it says.  Gen­eral knowl­edge that some infring­ing con­tent has been posted by users is insuf­fi­cient to  deprive a ser­vice provider of the safe har­bor; knowl­edge of the spe­cific infring­ing con­tent alleged in the com­plaint is necessary.

Along the way, there are some very inter­est­ing issues dis­cussed in the opin­ion.  Notably, the court held that copy­right own­ers can­not rely upon any­thing other than valid DMCA take-down notices to prove spe­cific knowl­edge of infring­ing mate­r­ial.  In other words, a let­ter from the copy­right owner is insuf­fi­cient to estab­lish notice if the let­ter does not con­tain all of the infor­ma­tion required by the DMCA notice-and-takedown provision.

Also, the deci­sion addresses the issue of when attor­neys’ fees may be awarded pur­suant to Rule 68 (the offer of judg­ment pro­vi­sion), as opposed to Sec­tion 505.  This has been a fairly thorny prob­lem in copy­right law, and this deci­sion does noth­ing to help the prob­lem, as the rea­son­ing is inter­nally incon­sis­tent.  To sum up, Rule 68  pro­vides that if a defen­dant makes an offer to accept judg­ment against it in a cer­tain amount (or with cer­tain stip­u­lated equi­table relief to the plain­tiff) and the plain­tiff refuses to accept the offer but then later obtains a lesser judg­ment at trial, the plain­tiff must pay the defendant’s costs incurred after the date the offer was rejected.  The wrin­kle is that costs can include attor­neys’ fees, but only for causes of action where attor­neys’ fee awards are treated as recov­er­able costs by statute.  One would think that would make attor­neys’ fees recov­er­able pur­suant to Rule 68 in copy­right cases, because Sec­tion 505 does treat attor­neys’ fees as recov­er­able costs.  Unfor­tu­nately, many courts have mucked this up by say­ing that fees are not recov­er­able under RUle 68 because on the pre­vail­ing party can obtain attor­neys’ fees in copy­right cases and Rule 68 only applies to defen­dants who have lost.  But this makes no sense.  I seri­ously doubt that any of the causes of action where Rule 68 has been applied have statu­tory pro­vi­sions allow­ing los­ing defen­dant to recover their attor­neys’ fees.  Indeed, the whole point of Rule 68 is to allow a los­ing defen­dant to recover its costs and if those costs (and fees) were already avail­able to a los­ing defen­dant (as opposed to gen­er­ally avail­able to a pre­vail­ing party) pur­suant to the sub­stan­tive statute, there would be no need for Rule 68 at all.   To be fair, this incon­sis­tency is pretty well estab­lished in var­i­ous prior decisions.

In any event, this deci­sion is a must read for those of us who lit­i­gate or advise clients in the on-line con­tent world, whether copy­right owner or ser­vice provider.  Here is a copy of the decision:


  1. Hi.  I just stum­bled onto your blogsite tonight.  I look for­ward to read­ing more.  I’m an ordi­nary per­son (by no means an attor­ney) curi­ous about copy­right laws regard­ing upload­ing and down­load­ing elec­tronic media (music, movies, books, etc…)

    I appre­ci­ate you blog­ging on the sub­ject.  I was hop­ing you could direct me to some spe­cific infor­ma­tion (laws, bills, etc.) that address down­load­ing elec­tronic media by indi­vid­u­als?  I’d really like to know what IS legal and what is not…

    Any help would be much appreciated.

    • Hi Tim, and thanks. Dig­i­tal copy­right issues cer­tainly are com­pli­cated and, unfor­tu­nately, the lines are not always clear. And gen­er­ally speak­ing, dig­i­tal con­tent is treated the same way as other copyright-protected con­tent. There are cer­tain digital-specific laws, like the DMCA, but those are focused more on ser­vice providers as opposed to con­sumers. One good source for consumer-oriented infor­ma­tion on dig­i­tal copy­right issues is the Elec­tronic Fron­tier Foun­da­tion. Check out its web­site at


  1. […] DMCA safe har­bor in an excel­lent deci­sion. You can find a sum­mary of the deci­sion and a copy of it here. Andrew, our legal intern, pre­pared for Geoff a sum­mary of the decision […]

Speak Your Mind

%d bloggers like this: