Capitol Records, LLC v. Vimeo, LLC
2016 WL 3349368, 826 F. 3d 78 (2016)
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Rule of Law:
The Digital Millennium Copyright Act's (DMCA) § 512(c) safe harbor provision protects internet service providers from liability for copyright infringement under both federal and state law, including infringements of pre-1972 sound recordings. To lose this protection through "red flag" knowledge, the infringement must be objectively obvious to a reasonable person, a standard not met by mere employee viewing of a video containing a recognizable song.
Facts:
- Vimeo, LLC operates a website where registered users can upload and publicly share videos.
- Plaintiffs, a group of record companies and music publishers, own the copyrights to numerous musical sound recordings.
- Vimeo users uploaded 199 videos to the website that contained musical recordings in which Plaintiffs held the copyrights.
- A portion of the sound recordings at issue were created before February 15, 1972, and are protected by state copyright laws, while others were created after that date and are protected by federal copyright law.
- Vimeo's terms of service required users to affirm that they had created the videos they uploaded and possessed all necessary rights, and that the content did not infringe on third-party rights.
- Vimeo did not pre-screen or review user-uploaded videos before they were made publicly available on its website.
- Vimeo had a practice of screening the visual content of videos for potential infringement of films, but it did not screen the audio content for infringement of sound recordings.
- On a few occasions, Vimeo employees made statements in emails to users that appeared to condone or encourage uploading videos with copyrighted music, such as telling a user, "[d]on’t ask, don’t tell ;)."
Procedural Posture:
- Plaintiffs sued Vimeo, LLC in the United States District Court for the Southern District of New York for direct, contributory, and vicarious copyright infringement.
- Vimeo moved for summary judgment based on the DMCA's § 512(c) safe harbor, and Plaintiffs cross-moved for partial summary judgment that Vimeo was ineligible for the safe harbor.
- The district court granted partial summary judgment to Plaintiffs regarding videos with pre-1972 sound recordings, holding that the DMCA safe harbor does not apply to state law copyright claims.
- The district court granted summary judgment to Vimeo for 153 videos, finding no evidence of knowledge, but denied summary judgment for other videos, finding a triable issue of fact regarding whether Vimeo had 'red flag' knowledge.
- The district court also rejected Plaintiffs' theory that Vimeo was willfully blind to infringement on its platform.
- Following these rulings, the district court certified three questions for interlocutory appeal to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the Digital Millennium Copyright Act's (DMCA) § 512(c) safe harbor, which protects service providers from liability for 'infringement of copyright,' apply to infringements of sound recordings fixed before February 15, 1972, which are protected by state copyright laws rather than federal law?
Opinions:
Majority - Leval, Circuit Judge
Yes, the DMCA's § 512(c) safe harbor provision applies to infringements of copyright under state law, including those involving pre-1972 sound recordings. The court's reasoning proceeded in three parts, addressing the certified questions. First, regarding pre-1972 recordings, the plain text of § 512(c) protects against liability for 'infringement of copyright' without limiting it to federal claims, unlike other sections of the Copyright Act. Construing the safe harbor to exclude state law claims would defeat Congress's purpose of encouraging investment in internet services by immunizing providers from liability for user-posted infringements of which they are unaware. Second, regarding 'red flag' knowledge, an employee's viewing of a video containing a recognizable copyrighted song is insufficient, by itself, to establish that infringement was 'objectively obvious to a reasonable person,' as required by Viacom v. YouTube. An ordinary employee cannot be expected to have specialized knowledge of music or copyright law to determine if a use is licensed or constitutes fair use. The burden is on the plaintiff to prove the provider had such disqualifying knowledge. Third, regarding willful blindness, § 512(m) explicitly relieves service providers of any obligation to monitor for infringement. Vimeo’s voluntary choice to monitor visual content did not create a duty to monitor audio content, and a few sporadic instances of employee misconduct were insufficient to establish a general company policy of encouraging infringement.
Analysis:
This decision significantly expands the protective scope of the DMCA's safe harbor for internet service providers by confirming its application to state law copyright claims, a crucial clarification for pre-1972 sound recordings. By setting a high, 'objectively obvious' standard for red flag knowledge and placing the burden of proof on plaintiffs to show such knowledge, the court makes it substantially more difficult for copyright holders to defeat a safe harbor defense. This ruling reinforces the pro-ISP balance struck by Congress in the DMCA, protecting platforms from potentially 'crushing liabilities' and thereby promoting the growth of user-generated content services. Future litigants will face a greater challenge in holding platforms liable without evidence showing that the specific infringement was obvious to a non-expert employee.
