Capital Records, LLC v. Vimeo, LLC

Background

The plaintiffs—record and music-publishing companies—brought copyright-infringement actions against Vimeo, LLC and Connected Ventures, LLC. They challenged musical recordings used in videos appearing on Vimeo.com, a platform that allows users to upload and share original videos. The opinion concerns 307 videos remaining in dispute after earlier rulings and an appeal.

The parties filed cross-motions for summary judgment on whether the Digital Millennium Copyright Act’s safe-harbor provision protected Vimeo from copyright liability. The safe harbor can protect qualifying internet service providers from liability for material stored at a user’s direction when the provider lacks actual knowledge of infringement and lacks awareness of facts making infringement apparent, or acts promptly after obtaining that knowledge.

The Second Circuit had previously held that merely showing that a Vimeo employee saw some part of a user-uploaded video containing most or all of a recognizable copyrighted song was not enough to prove the required “red flag” knowledge. Red flag knowledge requires proof that the provider’s employee was subjectively aware of facts making the specific infringement objectively obvious to an ordinary person without specialized knowledge of music or copyright law. The Second Circuit also placed on plaintiffs the burden of proving facts that would disqualify Vimeo from the safe harbor based on actual or red flag knowledge.

Court’s Analysis

The court held that plaintiffs had to show more than employee awareness that a video contained copyrighted music. They also had to provide evidence that the relevant Vimeo employees knew facts showing that the music was unauthorized and that the use was not fair use. The court explained that employees could not automatically be presumed to know whether users had permission to use music or whether a particular use was legally protected.

The court found that evidence of general company awareness of copyright, executive familiarity with licensing, comments about copyrighted music, and statements about Vimeo’s copyright practices did not establish that the employees who interacted with the specific videos had the required knowledge. Evidence that employees added music credits, liked or commented on videos, watched videos for extended periods, placed videos on promotional channels, whitelisted or buried videos, or encouraged users to create lip-dub videos also did not show that the employees knew the particular uses were unauthorized and not fair use.

The court separately considered videos uploaded or maintained by Vimeo or Connected Ventures employees. The Digital Millennium Copyright Act safe harbor applies to material stored at the direction of a user, so a factual question remained about whether the employee-uploaders acted as independent users or as Vimeo’s agents. The court found a genuine dispute of material fact concerning those videos. It rejected summary judgment for Vimeo on that group, without resolving the agency question.

Disposition

The court denied plaintiffs’ motion in its entirety. It granted in part and denied in part Vimeo’s motion: Vimeo received summary judgment as to 281 videos, but its motion was denied as to 26 videos uploaded or maintained by Vimeo or Connected Ventures employees. The parties were ordered to submit a letter updating the court on the case and proposing next steps by June 18, 2021. Judge Ronnie Abrams signed the order.