Lip-Dubs: Not So Amusing After All - Fordham Intellectual Property, Media & Entertainment Law Journal
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Lip-Dubs: Not So Amusing After All

Lip-Dubs: Not So Amusing After All

“Lip-dubs,” or videos combining audio-dubbing and numerous individuals collectively lip-sync a popular song, were all the rage on YouTube, Vimeo, and other user-generated content sites just a few short years ago.  Countless university students, corporate employees, and even summer camp attendees took part in this craze, posting their original creations on the Internet for the public’s viewing pleasure.  While many of these videos went viral and enjoyed tremendous worldwide popularity, big record labels such as Capitol Records and Virgin Records were less than amused as the videos contained copyrighted songs without license.  As a result, these big labels brought suit against Vimeo nearly three years ago.  The labels claimed in particular that Vimeo, in hosting the lib-dub videos on their site, actively induced users to infringe on well-known, copyrighted sound recordings by such artists as the Beatles and the Beach Boys.

Though the popularity of lip-dubs on user-generated content sites has fallen off in recent years, questions concerning their legality still remain in the aftermath of the Second Circuit’s recent holding in Viacom v. YouTube.  In that case, the Court held that Internet service providers, such as YouTube and Vimeo, must have actual knowledge of specific infringements through “takedown notices” or other such notifications before they can be legally required to remove the copyrighted material at issue.

After a three-year delay waiting for the Second Circuit to articulate this holding regarding service provider liability for copyright violations, the record labels have decided to move forward with their case and have asked a judge to grant summary judgment against Vimeo.  In a recent motion filed in the Southern District of New York, counsel for the big labels claim that Vimeo differs from YouTube and other similar sites in that Vimeo expressly tells users that it is permissible to use infringing music in their videos.  The motion further highlights Vimeo’s alleged failure to employ a team to monitor users’ content and their refusal to obtain licenses from music copyright owners or utilize available technologies to filter copyrighted music.   Taken together, the record labels claim that Vimeo has “cultivated an environment where it encouraged infringement of music by its employees and its users and then looked away from the same infringing conduct.”

If the labels can indeed prove their aforementioned claims against Vimeo, the Southern District of New York may determine that the site had actual knowledge of specific infringements.  Such a determination would likely result in Vimeo being liable under the Second Circuit’s holding in Viacom v. YouTube.  But this will not be easy for Capitol Records, Virgin Records, and the other co-plaintiffs to prove.  In short, they will likely have to demonstrate that specific notices of infringement from the copyright holders were unnecessary.  In doing so, there must be some showing that Vimeo knew about the lip-dub videos containing copyrighted audio material and chose to exercise willful blindness instead of taking action.  Given the immense volume of video content uploaded to the site, this may be hard for the labels to prove.

Still, this lawsuit presents a major question for the Court to decide: exactly how much onus is on service providers regarding the monitoring of content posted to their sites?  All eyes are on the SDNY to shed some light and clarify this murky copyright issue.

Brian Carroll