9th Circuit asks for briefing on 2nd Circuit Viacom Decision – UMG v Veoh affected

You will recall that the 2nd Circuit just issued its ruling in the Viacom/YouTube case. The 2nd Circuit essentially added a third type of knowledge that, if proven, would remove ISPs from enjoying the DMCA safe harbors thus subjecting the ISPs to contributory copyright liability. That knowledge is called “wilfull blindness” and has been written about in this blog previously.

Over at the Ninth Circuit, the court has now asked the parties in the UMG/Veoh case for supplemental briefing on these issues as raised and ruled on by the 2nd Circuit:

“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?”

and

“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? If so, what must the copyright holder show? Should this Court adopt the Second Circuit’s resolution of these questions?”

The parties have 21 days to submit their supplemental briefs.

What is unique about this situation is that the 9th Circuit already decided the UMG/Veoh case in December of 2011 and ruled against Universal in favor of the ISP, Veoh. So, the 9th Circuit seems to be looking at whether or not it should also adopt the 2nd Circuit’s new law created in the Viacom/Youtube case. This means that the 9th Circuit may be issuing a revised opinion that may significantly change the underlying decision! This is a big deal.

The federal circuits each have the right to make their own laws. Many times, the Circuits are split on the same legal issues meaning that one district may apply the same law differently to the same facts than another district. A split in the districts is one reason why cases are appealed to the U.S. Supreme Court – to get a rule of law that applies to the entire U.S. instead of having the law applied differently depending on where you live. The 2nd Circuit is a leading Circuit covering New York and the East Coast. The Ninth Circuit is a leading Circuit covering California and many West Coast states.

More on this as it develops will be posted.