My friend Andrew Bridges points out an important development in the ongoing war between content producers and their customers this week. A federal district judge granted summary judgment in to file-sharing service Veoh in a lawsuit brought by Universal Music. Greg Sandoval gets the story mostly right at CNet.
Universal sued the site, claiming that its users were posting content protected under copyright law. Veoh responded that it was immune from lawsuits over what its users did under the notorious Digital Millennium Copyright Act (DMCA), which provides a “safe harbor” for website operators, provided they respond to takedown demands sent in good faith by content owners who believe their rights are being infringed. Universal argued that the site wasn’t entitled to the safe harbor defense because it was complicit in the violations committed by its users. Because Veoh responds in a timely manner to takedown letters and otherwise tries to minimize infringing postings by users, however, the court held it was entitled to immunity.
Some reporters were quick—too quick–to declare victory not only for Veoh but for YouTube, which is still facing a $1 billion lawsuit by Viacom on similar facts. As I’ve explained in earlier posts, summary judgment rulings by district courts are hardly the last word in a case, no matter how strongly worded. Universal will surely appeal to the Ninth Circuit Court of Appeals, where anything can happen (and often does). District court opinions have no precedential value, and even if the Ninth Circuit affirms Judge Matz without modification, Ninth Circuit decisions have no precedential value in another circuit (the YouTube case is in the Second Circuit).
All this litigation, of course, is part of a larger shadow play within the entertainment industry to work out new ways of distributing and monetizing content in the digital age. UCLA Law Professor Doug Lichtman, quoted in Sandoval’s article, gets it just right:
“The most important antipiracy efforts under way these days aren’t cases but (rather) business initiatives like Hulu and Redbox,” Lichtman said, “where the content community is struggling to figure out how to give consumers what they want, in forms they want, and at reasonable prices.”
The litigation is a sideshow. An expensive, time-consuming, and potentially out-of-control sideshow, but a sideshow nonetheless.