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Appeals Court Hands Vimeo a Victory in Liability for Copyright-Infringing Videos

A federal appellate court has ruled that Vimeo has limited liability over users’ uploading of almost 200 videos with infringing music recordings, rejecting claims from record companies and publishers that they had shown that the site had “red flag” knowledge of piracy and even “willful blindness” to copyright violations.

The ruling from the three-judge panel of the 2nd Circuit Court of Appeals is a victory not just for Vimeo but other user-generated content sites and Internet providers, who have for years been battling the content industry over the threshold at which they can be held legally liable for infringing content.

The “safe harbor” provision of the 1998 Digital Millennium Copyright Act shields sites from liability for infringing material from users if they meet a series of conditions, including promptly taking down content when they get a notice from a copyright holder.

A site can still be held liable if it is shown they ignore “red flag” knowledge of cases of infringement. Just what makes for “red flag” knowledge has been at the center of litigation for years.

Internet firms argue that they should not bear the burden of monitoring sites for infringing content, while studios and record labels say that narrow readings of the law leave them saddled with the whack-a-mole task of filing tens of millions of takedown notices as a way of rooting out piracy. The music industry recently argued in a filing with the Copyright Office that it was “akin to bailing out an ocean with a teaspoon.”

 

Vimeo uses computer programs to locate and remove infringing videos, but such screening flagged the visual content of material but not the audio.

The music industry argued that emails from Vimeo employees showed “willful blindness” to the infringement of recorded music, and cited emails from Vimeo employees. In one email, a member of their community team, asked by a user if it would be okay to post a home video featuring Bobby McFerrin’s “Don’t Worry, Be Happy,” warned that it could constitute copyright infringement but then added, “Off the record answer…Go ahead and post it.”

But the judges wrote that “a handful of sporadic instances (amongst the millions of posted videos) in which Vimeo employees inappropriately encouraged users to post videos that infringed music cannot support a finding of the sort of generalized encouragement of infringement…”

The judges also rejected the plaintiffs’ contention that because Vimeo employees viewed videos where copyrighted songs were recognizable, they had met the threshold to press forward with their claims that the site was aware of specific cases of infringement.

“A copyright owner’s mere showing that a video posted by a user on the service provider’s site includes substantially all of a recording recognizable copyrighted music, and that an employee of the service provider saw at least some part of the user’s material, is insufficient to sustain the copyright owner’s burden of proving that the service provider had either actual or red flag knowledge of the infringement,” the judges wrote.

They noted that “employees of service providers cannot be assumed to have expertise in the laws of copyright.”

A district court judge ruled in 2013 that Vimeo was shielded from liability under the “safe harbor” provision for 153 of the videos, but that did not apply to other videos because they included recordings made before 1972. Sound recordings were not granted federal copyright protection until that year, and works before then have protection under state laws.

But the appellate judges ruled that the “safe harbor” provision did not distinguish between federal and state copyright protection, so Vimeo was shielded for those oldies as well.

Otherwise, the judges wrote, “service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring crushing liabilities under state copyright laws.”

Michael Cheah, general counsel of Vimeo, said in a statement, “Today’s ruling by the Second Circuit court is a significant win for not just Vimeo, but all online platforms that empower creators to share content with the world. The court rightly preserved the balance struck by the DMCA in protecting rights holders and service providers, and we are very pleased with the decision.”

A spokesman for the Recording Industry Assn. of America said that the ruling “further demonstrates that Congress needs to restore the necessary balance between digital platforms and content creators, including hard-working recording artists, songwriters and musicians. The court gave Vimeo a free pass despite compelling evidence showing that company policy was to look the other way.  We were particularly disappointed that the court found that, even if copyright owners’ complaints have merit, it claims that remediation is a question for Congress.”

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