Decisions in Brief

Decisions in Brief

John C. Gatz

©2016. Published in Landslide, Vol. 9, No. 2, November/December 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.


Court Examines DMCA Safe Harbor Provision for Sound Recordings used in Videos

Capitol Records, LLC v. Vimeo, LLC, 119 U.S.P.Q.2d 1110 (2nd Cir. 2016). Vimeo operates a website that allows users to post videos that are then viewable over the internet. Vimeo’s terms of service prohibits users from posting content that infringe on the rights of third parties. Capitol Records sued Vimeo for copyright infringement based on videos posted on Vimeo’s website that contained musical recordings for which Capitol owned the copyright. Vimeo sought the protection of the safe harbor provisions of the DMCA for ISPs in 17 U.S.C. § 512(c). Both sides moved for summary judgment at the district court, and the court granted summary judgment to Capitol on all pre-1972 recordings, ruling that the safe harbor provisions of the DMCA did not apply to those works because they are covered by state copyright laws, not federal copyright laws. The district court granted summary judgment to Vimeo on certain videos where no evidence was presented that any Vimeo employees had viewed the videos, and the district court denied summary judgment to either side on videos where a dispute existed over whether Vimeo had “red flag” knowledge of likely infringement. An interlocutory appeal was granted by the Second Circuit to decide three issues: (1) does the safe harbor provision of 17 U.S.C. § 512(c) apply to pre-1972 sound recordings; (2) does evidence of some viewing of a video that contains a copyrighted sound recording satisfy red flag knowledge to prevent an ISP from qualifying for the safe harbor provisions of the DMCA; and (3) does Vimeo have a general policy of willful blindness for copyright infringement on sound recordings.

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