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Vimeo Disqualified for DMCA Safe Harbor Protection

By Eric Misterovich

On September 18, record label companies including Capitol Records, Virgin Records America, and others prevailed in a lawsuit against the video-sharing website, Vimeo in a copyright infringement action. Specifically, the record companies alleged that the user-generated content (“UGC”) uploaded to Vimeo was of copyrighted and protected content belonging to music moguls such as The Beatles, Coldplay, Norah Jones, Nat King Cole, the Beach Boys, and other big names.

Adding fuel to the fire, when record companies initiated the lawsuit in 2009 they alleged that in addition to allowing unlicensed videos of lip-synced songs belonging to record companies, Vimeo’s services “intentionally differs from…other ‘user-generated content’ websites” That is, that Vimeo did more then just lend a blind eye, but actually led website users to believe that the copying was not a problem.

Vimeo defended the allegations citing the DMCA safe harbor provision (Digital Millennium Copyright Act), which protects service providers on the Internet from claims of copyright infringement made against them that result from the conduct of their users. However, in order to be afforded those protections, the service provider must meet the criteria set forth in the safe harbor provision. Specifically, a party acting in good faith must: (1) qualify as a “service provider”; (2) have registered an agent to receive notifications of claimed infringement; (3) have adopted and reasonably implemented a repeat-infringer policy; and, (4) not interfere with “standard technical measures” used by copyright owners to identify or protect their works.

Vimeo alleged they met the criteria and should be afforded DMCA safe harbor protection. While Judge Abrams, the judge presiding over the case, reasoned that Vimeo’s repeat-infringer policy was “reasonably implemented,” he determined that there was evidence that Vimeo was aware of infringing videos on their site. Vimeo responded that “given the sheer volume of video content uploaded every day, Vimeo does not — and cannot — view every video uploaded by its users to attempt to determine whether it infringes a copyright or otherwise violates Vimeo’s terms of service.” That is, Vimeo claims that given the amount of videos uploaded daily, it could not possibly have actual knowledge that the UGC on its website was infringing content.

Judge Abrams dismissed that argument holding that Vimeo did not take sufficient actions upon knowledge of the infringements to escape being held accountable. The particular evidence that was raised and corroborated that brought the judge to this conclusion, was that actual Vimeo employees uploaded some of the copyrighted videos, and additionally, that Vimeo employees commented on, and “liked” some of the copyrighted content. This evidenced Vimeo’s unmistakable awareness of the infringing content.

Vimeo failed to present any evidence disputing its employees interactions with the videos, but claimed that even if the interactions were true, they were insufficient to rise to the level of “actual or red flag knowledge” of infringing content.

To this, the Judge held that Vimeo failed to provide evidence sufficient to rebut the evidence, and afford it protection under the safe harbor provision. “Although it is conceivable that a Vimeo employee “liked,” commented on or otherwise interacted with a video without actually watching it–a proposition the Court finds dubious–Vimeo has presented no evidence indicating that this is the case as to any of the videos in question.”

In conclusion, while Vimeo may not have been disqualified from safe harbor protection for failure to affirmatively seek out instances of infringement on its website, it lost out on the safe harbor protections when it acted willfully blind to infringement.

If you seek information on the DMCA safe harbor provision, contact the copyright infringement attorneys at Revision Legal.

Sources: (1), (2), & (3)

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