Recently, Internet Service Provider Vimeo partially prevailed in a copyright infringement lawsuit filed against it. The Plaintiffs in this case alleged that their copyrights were infringed as a result of music videos being posted to Vimeo’s website by its users. Vimeo invoked the safe harbor provisions provided to it under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c). Under the safe harbor provisions, Internet Service Providers, such as Vimeo, can be protected from liability for copyright infringement as a result of their users uploading infringing content on their site if the service provider does not have knowledge of the infringement.
On summary judgment, the District Court ruled in the Plaintiffs’ favor on pre-1972 videos finding that the safe harbor provisions did not apply to them. The District Court ruled in Defendant’s favor as to several of the post-1972 videos where there was a lack of evidence showing Vimeo employees viewed them, but noted that there was a question as to whether Vimeo possessed knowledge of circumstances that made infringement apparent on some videos which could not be determined on summary judgment.
Vimeo filed an appeal to the Second Circuit Court of Appeals, who reversed the District Court’s finding that the safe harbor provisions did not apply to pre-1972 videos. The Second Circuit found that pre-1972 videos were not covered under federal law, but that state law provided safe harbor protection. The Second Circuit supported its holding by stating that making service providers “subject to liability under state copyright laws for postings by users of infringements of which the service providers were unaware would defeat the very purpose Congress sought to achieve in passing” the safe harbor provision. The Second Circuit further warned that service providers would be required to incur substantial costs to monitor postings of pre-1972 videos, while noting that many popular recordings from artists such as Elvis, Marvin Gaye and the Beatles, were made prior to 1972.
The Second Circuit also found that “some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyrighted song” is not sufficient to establish knowledge and otherwise disqualify a service provider from the safe harbor protection. The Second Circuit provided several reasons for its finding, namely that more facts are needed to determine how long the viewing was and for what purpose the employee viewed the videos. The Second Circuit noted that in order to be disqualified from the safe harbor protection a service provider “must have actually known facts that would make the specific infringement claimed objectively obvious to a reasonable person.” There is also no requirement that a service provider’s employees affirmatively seek indications of infringement.
The Second Circuit also rejected the Plaintiffs’ argument that Vimeo was willfully blind as to the alleged infringements because of Vimeo’s policies to monitor posted videos for infringement of visual but not audio content and because Vimeo allegedly encouraged its users to post infringing videos. The Second Circuit specifically noted that “a handful of sporadic instances (amongst the millions of posted videos) in which Vimeo employees inappropriately encouraged users to post videos that infringed music . . . cannot suffice to justify stripping Vimeo completely” of the safe harbor protection.
This ruling appears to be a significant victory for service providers such as Vimeo and makes it difficult to breach the safe harbor protection provided to service providers under the Copyright Act. However, some issues still remain unresolved in this case, such as whether Vimeo can be held liable under the specific standards set forth by the Second Circuit, which may need to be resolved through a trial. Please contact our office if you have any questions regarding the information in this article.
Daniel Devine, Esq.
Santucci Priore, P.L.
 See, Capitol Records, LLC, et. al. v. Vimeo, LLC, No. 14-1048, 2016 WL 3349368 (2d Cir. Jun. 16, 2016).
 Id. at 2016 WL 3349368 at *1
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 Id. at *8.
 Id. *7-10.
 Id. at *2, 13.
 Id. at *13.
 Id. at *11.
 Id. at 14-15.
 Id. at 15.