Judge Permits Record Companies to Pursue Vimeo for Copyright Infringement - Fordham Intellectual Property, Media & Entertainment Law Journal
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Judge Permits Record Companies to Pursue Vimeo for Copyright Infringement

Judge Permits Record Companies to Pursue Vimeo for Copyright Infringement

Declines to decide Vimeo is free of liability due to safe harbor provisions of DMCA in instances where employees interacted with the videos.

The Hollywood Reporter reported a judge’s determination that there is a “triable issue” as to whether Vimeo, a video sharing site, had sufficiently taken actions upon “knowledge or awareness” of copyrighted music in some of the videos being shared on its site.

According to the reporter, Capitol Records, among other record labels, brought action in December 2009, alleging that Vimeo infringed on various copyrights for sound recordings by artists including The Beatles, Daft Punk, Radiohead, Beyoncé and the Beach Boys.  Vimeo asserted that it was free of liability due to the Safe Harbor protections of the Digital Millennium Copyright Act.  On Thursday, Sept. 19, Capitol Records LLC, et al., v. Vimeo, LLC d/b/a Vimeo.Com, et al., a federal judge in New York did not question whether Vimeo knew there was copyrighted music in some of the videos being shared—the parties conceded that it did—it questioned whether Vimeo was entitled to safe harbor protections of the DMCA for 55 of 199 videos in this suit that Vimeo employees interacted with or uploaded.

U.S. District Judge Ronnie Abrams evaluated evidence that Vimeo employees interacted with 55 of the videos, and also determined that employees uploaded some of the videos, to bar Vimeo from liability.  While refusing to answer the question of liability, the judge evaluated evidence that Vimeo employees commented on the flagged videos, “liked” some of the videos, “whitelisted” some of the videos by disabling a flagging function, and is permitting the suit to continue.  Capitol Records at 29.  By declining to answer whether the safe harbor protections extended to Vimeo in those particular circumstances, the copyright infringement suit is still alive, and raises interesting policy questions with respect to future liability of Vimeo and other similar Internet service providers.

Thursday’s decision also explained Congress’ policy reasons for enacting the DMCA in 1998—to update copyright law for the digital age.  The DMCA was developed to encourage service providers and copyright owners to deal with copyright infringements together, and to ensure that the “efficiency of the internet” continues to improve and that the variety and quality of services on the Internet will continue to expand.  Congress believed that this could best be accomplished by limiting the liability of service providers, like Vimeo, since service providers ordinarily engage in different acts that expose them to copyright infringement. Capitol Records at 7-8.  The upcoming decision regarding the liability of video sharing sites when providers do not have a role in developing the content of the video, and accordingly, no role in creating the copyright infringement, will raise unique questions and implications for similar Internet service providers.

While the Court is slated to answer the question as to whether Vimeo is entitled to safe harbor protection for 55 of the 199 videos that Vimeo employees interacted with or uploaded, the court decided that Vimeo is not liable for copyright infringement for the remaining 144 videos in the suit, with the exception of videos that infringe copyrights from pre-1972 recordings.  The court determined that pre-1972 recordings fall outside of DMCA safe harbor protections.  The Court also will not hear the allegation that Vimeo induced copyright infringement, which was a central issue discussed in the recent Viacom v. YouTube decision.

The court explained that Vimeo is an online platform that enables users to upload, share and view original videos and it differentiates itself from other video-sharing platforms by requiring those who upload a video, to play a role in the creation of the video.  Although an internet-user must register with the site to post a video and members must agree to Vimeo’s Terms of Service, it is free of charge and non-members can view videos posted on the site. Capitol Records at 1.

Alex Buller

Alex Buller is a second year student at Fordham Law School. She is an IPLJ staff member.