User:Sagajr

UC Berkeley Law student.

Brazilian.

Internet guy studying and working internationally with Internet governance, cybersecurity and other policy-related issues.

Capitol Records, LLC v Vimeo, LLC is a case in the United States District Court for the Southern District of New York where plaintiffs from the music industry brought a copyright infringement action against an online service provider. The court is to decide whether defendant Vimeo is entitled a safe harbor protection, as defined by the Digital Millenium Copyright Act (DMCA), pertaining to a series of copyrighted videos that were uploaded to its platform.



Facts
Vimeo started operating in 2004-2005 as an online video platform that requires its users to upload only material they have created or participated in the creation of. Vimeo does not pre-screen the uploaded material, and relies on community review to guarantee that users follow its Terms of service.

In December 2009, plaintiffs Capitol Records and EMI (record and music publishing companies) filed a lawsuit claiming that 199 URLs to videos on Vimeo’s platform infringed their music copyrights.

Vimeo did not dispute that it lacked authorization from the rights’ owners and that it infringed their copyright. Nevertheless, Vimeo argued that it was entitled a “safe harbor” protection under 17 U.S.C. § 512(c) (information residing on systems or networks at direction of users) of the DMCA.



September 2013 Order
To qualify for a safe harbor protection, a party must go through a three threshold criteria and fulfill the requirements of the safe harbor protection it raised. The Court also deliberated upon copyrighted songs fixed before February 15, 1972.

A) Threshold criteria

Under this test, the District Court concluded that:

1) Vimeo does qualify as a service provider, even though it provides more than just hosting capabilities;

2) Vimeo’s repeat infringer policy satisfied the threshold requirements, once (i) users agreed, under its Terms of Service, not to use Vimeo to upload content that infringes copyrights”, being aware that infringing videos could be removed and accounts terminated by the company, (ii) Vimeo informed its users of the policy and provided its DMCA designated agent information online, and (iii) Vimeo reasonably implemented more enforcement mechanisms as the service grew;

3) Vimeo’s privacy settings do not interfere with copyright owners’ standard technical measures used to identify or protect copyrighted works.

B) Safe Harbor Requirements

Whether Vimeo qualifies for a safe harbor pursuant to §512(c), the District Court noted that:

1) Storage at the direction of a user: 10 of the 199 videos have been uploaded by users who were or became Vimeo's employees, and a triable issue was raised to decide whether they stored the content as "users" or as employees acting on behalf of Vimeo;

2) Knowledge of infringement: 2.a) some employees interacted with 55 of 199 infringing videos (by liking, commenting, reviewing), and the court was still to decide whether Vimeo acquired actual or red flag knowledge due to its employees' actions; 2.b) a series of employees' emails commenting or ignoring copyright infringements was insufficient to establish willful blindness in the litigation;

3) Ability to control infringing content with financial benefits: the court decided that Vimeo’s control tactics were not pervasive enough as to influence or induce its users to upload copyrighted material;

4) Expeditious removal: Vimeo removed the infringing videos requested by the Plaintiffs in an expedite way.

C) Pre-1972 Recordings

The Court shared the plaintiffs' view that the DMCA safe harbors do not apply to recordings fixed before February, 15, 1972, and that this policy matter should be resolved by the Congress, not by the Courts, if policymakers decide to extend the DMCA protections in time. Therefore, any video-in-suit that infringes music recorded prior to that day in 1972 is not eligible to a safe harbor protection.

December 2013 Order
On December 31, Judge Abrams decided on issues pending before the Court.

1) Vimeo was entitled to summary judgment regarding seventeen more videos related to the case. Fifteen of them were uploaded by "Plus" users (which account for 36% of the 43,000 new videos uploaded daily to the website), which makes it unrealistic to believe that employees watch every “Plus” user material. In other two videos that played copyrighted songs for a short time in the background, the court concluded that the infringement was not “obvious to a reasonable person”, leaving room for a fair use defense.

2) The Court also allowed Plaintiffs to add other instances of infringement to the suit, many related to songs fixed before February 15, 1972 or to videos that Vimeos interacted with.

3) Finally, the court certified questions raised by the defendant, which means that : "(a) Whether the DMCA's safe-harbor provisions are applicable to sound recordings fixed prior to February 15, 1972; and (b) Whether, under Viacom Int'l, Inc. v. YouTube, Inc., a service provider's viewing of a user-generated video containing all or virtually all of a recognizable, copyrighted song may establish 'facts or circumstances' giving rise to 'red flag' knowledge of infringement."

Significance and reactions
The case has been cited in different sources and generated different reactions from its reviewers.

Justin E. Pierce and Matthew R. Farley argue that cases like this help shedding some light in the fine-tuning of online service providers' rights, obligations and safe harbor protection. In their analysis of the September 2013 Order, they point out some implications to providers streaming video: "Don’t hedge on a copyright enforcement policy, and put it front and center. (...); Actions speak louder than words. (...); Streaming media companies should manage how their employees interact with users. (...); Although it may be difficult, streaming media startups should resist uploading initial content in order to populate and popularize their services. (...); As a general matter, tolerating “gray areas” will cost money. (...); 'Red flag' knowledge and willful blindness are significant expansions on actual knowledge."

Evan Sheres believes that "Judge Abrams failed to establish a reasonable precedent regarding 'red flag' knowledge, further eroding the 'red flag' standard. Actual employee interaction with the infringing material, especially where the employees  make it harder  for copyright owners to issue takedown notices, should be sufficient to constitute infringement which is ‘objectively’ obvious to a reasonable person."

Others are particularly interested in the implications and definitions regarding the safe harbor protection to recordings made before February 1972.

There is one more really bad part of the ruling... and it's saying that there are no DMCA protections on pre-1972 sound recordings.

== References ==