Vimeo Not Responsible for What Its Users Upload to Its Site

Vimeo LogoAs reported on Ars Technica, the Second Circuit Court of Appeals recently ruled that Vimeo qualified for "safe harbor" protection against copyright infringement liability under the Digital Millennium Copyright Act (DMCA).

The DMCA

The DMCA was enacted in 1998 as a major amendment to US copyright law.

Among other things, the DMCA limits the liability of internet service providers (including website owners) for copyright infringement by their users — specifically for “storage at the direction of a user of [infringing] material that resides on a system or network controlled or operated by or for the service provider.”

Under the DMCA's "safe harbor" provisions, service providers have to remove infringing content when asked to do so by the copyright owner and adopt and follow "repeat infringer" policies.

Vimeo

Vimeo is a website for storing and playing videos. According to the Circuit Court's opinion,

Founded in 2005, as of 2012 it hosted more than 31 million videos and had 12.3 million registered users in 49 countries. Approximately 43,000 new videos are uploaded to Vimeo each day. Users post videos onto the website without the intervention or active involvement of Vimeo staff, and Vimeo staff do not watch or prescreen videos before they are made available on the website.

Vimeo's terms of service require users to only upload videos that they created or that they have the right to post without infringing the rights of others.

Music and Pictures

A group of copyright holders for songs by artists like The Beatles and Jay-Z sued Vimeo in 2009 for direct, contributory, and vicarious copyright infringement based on 199 videos that included recordings of copyrighted music. The plaintiffs later added more than 1,000 more videos.

Vimeo tried to get the case dismissed on the basis of the DMCA safe harbor. The plaintiffs also moved for summary judgement that Vimeo had infringed.

The district court found for Vimeo for 136 videos, on the basis that there was no evidence that Vimeo employees had observed them.

However, the court found for the plaintiffs for videos that included sound recordings from before 1972.

The Pre-1972 Music

The district court ruled that the safe harbor only applied to FEDERAL copyright law.

Music recorded before 1972 isn't covered by federal copyright law (for convoluted reasons) but it is protected by STATE copyright law.

The Court of Appeals found that the safe harbor does include claims under state copyright law as well as federal law.

"Red Flag" Knowledge of Infringement

One of the questions before the Circuit Court was whether:

a service provider's viewing of a user-generated video containing all or virtually all of a recognizable, copyrighted song may establish `facts and circumstances' giving rise to `red flag' knowledge of infringement"...

The Court concluded that it didn't, because:

employees of service providers cannot be assumed to have expertise in the laws of copyright. Even assuming awareness that a user posting contains copyrighted music, the service provider's employee cannot be expected to know how to distinguish, for example, between infringements and parodies that may qualify as fair use. Nor can every employee of a service provider be automatically expected to know how likely or unlikely it may be that the user who posted the material had authorization to use the copyrighted music. Even an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed. Additionally, the service provider is under no legal obligation to have its employees investigate to determine the answers to these questions.

Takeaway

This decision is very good news for owners of websites on which users post unlicensed copyrighted content.

This doesn't give website owners a free pass — they still need to remove the copyrighted content when asked, and they can't post unlicensed material on their own. But it means that website owners aren't deemed to have "knowledge" that content is infringing just because they know it's there.

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