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DMCA 'Safe Harbor' Consensus Among Circuits Evolves
The Ninth Circuit recently issued an important ruling in UMG Recordings, Inc. v. Veoh Networks, Inc., 2013 U.S. App. LEXIS 5100 (9th Cir. March 14, 2013) (Veoh 2), relating to the Digital Millennium Copyright Act (DMCA) 'safe harbor”protection under 17 U.S.C. '512(c). After the Second Circuit's ruling'in Viacom International Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (Viacom), the Ninth Circuit withdrew its opinion in UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011) (Veoh 1) and granted a petition for rehearing that resulted in the superseding Veoh 2 case ruling in March.
The Ninth Circuit is now much closer to the Second Circuit's ruling in the Viacom case with respect to the substantive legal aspects of DMCA Section 512(c), even though the Ninth Circuit, in both the Veoh 2 and Veoh 1 cases, agreed with and affirmed the district court's ruling respecting Section 512(c). Arguably, there is now a consensus between the Second and Ninth Circuits' treatment of the substantive aspects of Section 512(c) based on the matters addressed in the Veoh 2 case.
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