Copyright: Vimeo wins again against record labels

Video host Vimeo is not liable for copyright infringement by its users. The US Federal Appeals Court has now given this decision for the second time. Several record labels sued Vimeo in late 2009, so this process has been going on for over 15 years. The rights holders failed the first time with shaky legal arguments. This time they could not prove that Vimeo employees themselves knew that specific videos were infringing. It is not enough for Vimeo to know that it also hosts illegal videos if it is not clear which of several videos is affected.

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In theory, Vimeo allows only videos on its platform that the uploaders have created themselves and, apart from a few categories (such as pornography and video game recordings), prohibits violations of intellectual property rights. Vimeo users can purchase licenses for certain music recordings directly on the website. However, not every video containing other music is illegal; The uploader could have obtained the license in some other way, be the rights holder themselves, use copyright-free music, use a Creative Commons license or, for example, make fair use of other people’s works. Could exercise his rights. The latter requires complex legal considerations of the circumstances in each individual case.

Nevertheless, it is undeniable that there are videos with illegal music on Vimeo. Their uploaders have violated copyright. However, rights holders would prefer to pay Vimeo rather than sue the uploaders. As a result, several major record labels sued Vimeo in late 2009. However, the Platform Operator may rely on the safe harbor provisions of the US federal Digital Millennium Copyright Act (DMCA). It protects service providers from liability for copyright infringement by users if the provider meets certain conditions. The safe harbor is extremely important for web hosts and video platforms like YouTube and Vimeo. Without this protection, every web host would have to check every file before allowing it to go online.

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However, if the host knows or should know that the content infringes copyright and does not remove it quickly, the protection does not apply. Furthermore, if the hoster benefits financially from copyright infringement and has both the right and the opportunity to control the infringing content, the protection no longer applies. The record labels relied on these exceptions for protection in their lawsuits.

Proof of deliberate aversion is not possible

without success. Vimeo has always responded promptly to concrete information from rights holders, and the company has also complied with other formal requirements. The Federal Appeals Court said in 2016 that whether Vimeo employees should have known which specific videos infringed copyright should be decided based on the standards of an ordinary person, not a lawyer who Expert in copyright. Plaintiffs must therefore show that Vimeo employees who interacted with certain videos either specifically knew that these videos infringed copyright, or the infringement was so obvious that no ordinary person would have recognized it at the time. Could have done. The plaintiffs were unable to provide this evidence.

Federal appeals court refers to cases that have been decided by the U.S. Supreme Court Andy Warhol Foundation for the Visual Arts vs. GoldsmithsDozens of copyright experts participated in the proceedings at the time; Over 40 argued that a certain aspect of fair use was present in the specific case, with 18 arguing against it. The Supreme Court ultimately – not unanimously – decided against it. “Where academic scholars specializing in the study of fair use and Supreme Court justices are so divided, we cannot speculate on what is ‘obvious’,” the federal appeals court wrote in its recent decision.

Vimeo is safe because it practices less censorship

Furthermore, rights holders have argued that Vimeo has also lost protection because of the second exception: Vimeo benefits financially from advertising and has both the right and the choice not to show the videos. Specifically, Vimeo highlighted some videos and blocked others as duplicates or violating the rules. In doing so, Vimeo demonstrated enough control to lose the protection of the DMCA.

However, this interpretation goes too far for both the Federal District Court and the Federal Court of Appeals, since practically every hoster always has the option to remove files. This means that the safe harbor protects practically no hosts, which would reduce the law to absurdity. Web hosting, which the law intends to promote, would be nipped in the bud. The second exception to the safe harbor should therefore be interpreted such that it applies only when the hoster exercises close control over the content hosted, but not when, in this specific case, it only controls a small portion of all videos. Can review the part. Vimeo’s small group of employees can’t possibly intensively monitor the millions of videos uploaded each year.

Still, according to the appeals court, there is a strong argument that Vimeo lost DMCA protection: the company actively encouraged people to post videos lip-syncing to famous music recordings. However, the plaintiff abandoned this argument in a submission to the court. It appears to be based on a misreading of an earlier decision of the same appeal court in the same case. Nevertheless, this exemption from argument applies, so the court does not have to deal with it.

first round

The same case is already underway before the same federal appeals court. Initially, record labels claimed, among other things, that the DMCA’s safe harbor applied only to works that were covered by copyright under US federal law that took effect in 1972. There will be no safe haven for older works covered by US state copyright law. At that time the US Copyright Office also gave this legal opinion.

But the federal appeals court responsible for the specific case didn’t want to know anything about such a ban in 2016. Among other things, it found that the US Copyright Office had relied in its expertise on a body of law that does not exist. And the phrase “copyright infringing” as used in the safe harbor paragraph refers to exactly that: copyright. It does not matter whether it is copyrighted under federal or state law. In general, differences between pre/post-1972 would undermine the purpose of the regulation, as all hosters would then have to re-check every file. Eventually, due to expanding copyright terms, any work before 1972 could be included.

So the federal appeals court (with an apparent rebuke from the U.S. Copyright Office) rejected the plaintiffs’ argument (“vimeo i“, references 14-1048/1049/1067/1068) and sent the case back to federal district court. This followed a ruling in Vimeo’s favor, which the appeals court has now affirmed.

The plaintiff has the option of seeking review by an extended bench of the same appeal court or filing a petition in the Supreme Court. However, they have no legal right to such further negotiations, and such requests are granted only in rare cases.

process is called Capitol Records et al V Vimeo and was pending in the United States Court of Appeals for the Second Circuit under cases 21-2949 and 21-2974.

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