No Safe Harbor for Vimeo on Capital Records’ Lip Synch Lawsuit
by Jose Landivar, Arther Law’s Industry Insider
Online video-sharing service Vimeo failed in its efforts last Wednesday to dismiss Capitol Records’ copyright suit over user-generated lip-sync videos of artists such as Radiohead and the Beatles, when a federal judge ruled that some of the videos might not qualify for safe-harbor protection and that a factual issue was presented on the grounds that the company should have known about the alleged infringement simply because its employees uploaded and commented on some of the videos.
The lawsuit was filed in 2009 in response to the rising popularity of “lip synch” videos by users of copyrighted and protected content. In its suit, Capital Records charged that Vimeo wasn’t just permitting the unauthorized use of copyrighted music, but that it was actively inducing it by leading viewers to believe that there was no problem with the dubbing. Vimeo responded that it was protected by the Digital Millennium Copyright Act’s safe harbor provision which permits companies to escape liability for infringing content posted on their sites as long as the company is unaware of the material and has a system in place to block repeat offenders.
The judge dismissed Vimeo’s argument, noting that: “Triable issues exist as to whether Vimeo acquired actual or red flag knowledge of the infringing content in the 55 videos with which Vimeo employees interacted…” pointing to evidence that ten of the files were uploaded by people who were Vimeo employees or would soon get jobs there, and that employees had “liked,” commented on, or otherwise interacted with 45 others.
Vimeo didn’t actually rebut this claim, but argued that such activity did not cross the threshold under the DMCA for “knowing” about infringing activity. Judge Abrams dismissed this argument, reasoning that Vimeo’s interpretation set the bar too high, possibly collapsing “the distinction the DMCA makes between actual and red flag knowledge and would run contrary to the statute’s requirement that infringing content only be objectively obvious to a reasonable person.”
In spite of the label’s success to proceed with the lawsuit, the judge rejected the label’s contention that Vimeo encouraged repeat offenses, finding that it consistently told users about the rules and regularly enforced them although there were examples of Vimeo users ignoring complaints of copyright infringement and Vimeo failing to “use sophisticated monitoring technology in its possession to seek out and remove instances of infringing content.”
According to Law360, another notable aspect of Wednesday’s decision was Judge Abrams’ decision that any claims based on songs released before Feb. 15, 1972 — which are subject to state copyrights, not federal ones — are categorically excluded from DMCA’s safe harbor provision. Although, the issue of whether these claims, based on state copyrights, qualify for safe harbor has not been entirely defined by the courts, recent statements made by the Copyright Office appear to support Judge Abrams’ view that the safe harbor provision should not be used to protect against claims of state copyright infringement. While the office said that the safe harbor provision could be extended by legislation, it also said the courts should not do so on their own.
For more on the safe harbor provision, check: http://en.wikipedia.org/wiki/Safe_harbor_(law)
 Adi Robertson, Record labels win right to take Vimeo to court in lip-synching lawsuit, The Verve, available at: http://www.theverge.com/2013/9/20/4752576/record-labels-win-right-to-take-vimeo-to-court-in-lip-synching-lawsuit (last viewed Sept. 23, 2013).
 Bill Donahue, Vimeo can’t use safe harbor to dodge Copyright Lawsuit, Law360.com, available at: http://www.law360.com/ip/articles/474222/vimeo-can-t-use-safe-harbor-to-dodge-copyright-lawsuit (last checked, Sept. 23, 2013).