Copyright: Vimeo wins again against record label
Since 2009, record labels have been trying to hold Vimeo liable for videos with unlicensed music. The rights holders have failed again.
(Image: Daniel AJ Sokolov)
Video host Vimeo is not liable for copyright infringements by its users. This has now been decided for the second time by a US federal appeals court. Several record labels sued Vimeo at the end of 2009, so the case has been dragging on for more than 15 years. The first time, the rights holders failed with untenable legal arguments. This time, they were unable to prove that Vimeo employees knew of their own accord that specific videos were infringing. It is not enough for Vimeo to know that it also hosts illegal videos if it is not clear which of the many videos are affected.
In principle, Vimeo only allows videos on its platform that the uploaders themselves have produced and, in addition to certain categories (such as pornography and video game recordings), prohibits the infringement of intellectual property rights. Vimeo users can purchase licenses for certain music recordings directly on the website. Nevertheless, not every video with other music is illegal; the uploader could have obtained a license in another way, be the rights holder himself, use copyright-free music, use a Creative Commons License or, for example, exercise his right to fair use of other people's works. The latter requires complex legal consideration of the circumstances in each individual case.
Nevertheless, it is undisputed that there are also videos with illegal music on Vimeo. Their uploaders have therefore infringed copyright. However, rights holders would rather ask Vimeo to pay than prosecute the uploaders. Several major record labels therefore sued Vimeo at the end of 2009. However, the platform operator can invoke the protective provisions ("safe harbor") of the US Digital Millennium Copyright Act (DMCA). It protects service providers from liability for copyright infringements by users if the provider fulfills certain conditions. The safe harbor is extremely important for web hosts and video platforms such as YouTube and Vimeo. Without this protection, every web host would have to check every file before it could go online.
However, the protection does not apply if the hoster knows or must know that the material infringes copyright and does not remove it quickly. Furthermore, the protection does not apply if the hoster profits financially from the copyright infringement and has both the right and the possibility to control the infringing content. The record labels have invoked these exceptions to protection in their lawsuit.
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Proof of knowingly looking the other way does not succeed
Without success. This is because Vimeo has always reacted quickly to specific notices from rights holders, and the company has also complied with other formal requirements. Whether Vimeo employees should have known which specific videos infringed copyright is to be decided by the standards of a normal person, not by a lawyer specializing in copyright, the Federal Court of Appeal held back in 2016. The plaintiffs would therefore have had to show that those Vimeo employees who interacted with certain videos either knew specifically that these videos infringed copyright or that the infringement was so obvious that any normal person would have recognized it at the time. The plaintiffs did not succeed in proving this.
The Federal Court of Appeal refers to the case Andy Warhol Foundation for the Visual Arts v Goldsmith, which has since been decided by the US Supreme Court. Dozens of copyright experts participated in the case; more than 40 argued that a certain aspect of fair use was present in the specific case, 18 argued against it. The Supreme Court ultimately ruled – not unanimously – against. "Where academic scholars specializing in the study of fair use, as well as Supreme Court justices, are so divided, we cannot infer what is 'obvious,'" the federal appeals court wrote in its recent decision.
Vimeo protected because it practices little censorship
In addition, the rights holders argued that Vimeo had also lost protection due to the second exception: Vimeo benefits financially from advertising placements and also has both the right and the ability not to show videos. Specifically, Vimeo had highlighted certain videos and blocked others as duplicates or contrary to the rules. Vimeo had thus demonstrated sufficient control to lose the protection of the DMCA.
However, this interpretation goes too far for both the federal district court and the federal appeals court, because virtually any hoster always has the ability to delete files. This means that the safe harbor practically does not protect any hosters, which would make the law absurd. Web hosting, which the law is intended to promote, would be nipped in the bud. The second exception to the safe harbor should therefore be interpreted in such a way that it only applies if the hoster exercises intensive control over the hosted content, but not if, as in this specific case, it can only review a tiny proportion of all videos. The small number of Vimeo employees could not possibly monitor the millions of videos that are uploaded every year.
Nevertheless, according to the Court of Appeal, there is a strong argument that Vimeo has lost the protection of the DMCA: Namely, the company actively encouraged people to post videos lip-syncing to popular music recordings. However, the plaintiffs have waived this argument in a submission to the court. This is apparently based on an inaccurate reading of the first decision of the same Court of Appeal in the same case. Nevertheless, the waiver of this argument is valid, so the court need not address it.
The earlier round
The same case has been before the same federal appeals court before. This is because the record labels initially claimed, among other things, that the DMCA's safe harbor only applied to works covered by copyright under US federal law, which came into force in 1972. There is no safe harbor for older works that fall under US state copyright. This legal opinion was also held by the US Copyright Office at the time.
However, the Federal Court of Appeal responsible for the specific lawsuit did not want to know anything about such a restriction in 2016. Among other things, it found that the US Copyright Office had relied on a legal provision in its expert opinion that did not exist. And the phrase "infringement of copyright" used in the safe harbor paragraph refers to exactly that: copyright. Regardless of whether it is copyright under federal or state law. In general, a distinction between pre/post 1972 would undermine the purpose of the regulation, because then all hosters would have to check every file all the more. After all, due to the ever longer copyright terms, a work from before 1972 could be included.
So the Federal Court of Appeal (with conspicuous scolding for the US Copyright Office) rejected the plaintiffs' argument ("Vimeo I", case no. 14-1048/1049/1067/1068) and sent the case back to the Federal District Court. The latter subsequently ruled in favor of Vimeo, which the Court of Appeal has now confirmed.
The plaintiffs have the option of asking for a review by an expanded bench of the same court of appeals or submitting a request to the Supreme Court. However, they have no legal right to such further hearings, and such requests are only granted in rare cases.
The case is Capital Records et al v Vimeo and was pending in the US Court of Appeals for the Second Circuit in Cases 21-2949 and 21-2974.
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