Capitol Records, LLC v. Vimeo, LLC
972 F. Supp. 2d 537
S.D.N.Y.2013Background
- Vimeo is a user-uploaded video platform; plaintiffs (record/publishing companies) sued in 2009 over 199 "Videos-in-Suit" that used copyrighted sound recordings without authorization.
- Initial discovery and cross-motions focused on whether Vimeo qualifies for the DMCA §512(c) safe harbor (no actual/red-flag knowledge; material stored at user's direction; other §512(c) requirements).
- In the Court’s Sept. 18, 2013 Order, the Court granted Vimeo summary judgment for many videos, denied summary judgment for videos with evidence of employee interaction (possible "red flag" knowledge) and ruled the DMCA safe harbor does not extend to pre-1972 sound recordings.
- Defendants moved for reconsideration as to 35 videos, arguing (1) no evidence employees viewed 15 of them and (2) even if viewed, the infringing nature was not "objectively obvious."
- Plaintiffs moved to amend to add ~1,476 additional alleged infringements (including many pre-1972 recordings and many videos with alleged employee interaction).
- Defendants moved for interlocutory certification under 28 U.S.C. §1292(b) on two questions: applicability of the DMCA safe-harbor to pre-1972 recordings; and whether viewing a user video containing copyrighted music creates a triable issue of red-flag knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vimeo is entitled to summary judgment on certain Videos-in-Suit because there is no evidence employees viewed them | Many videos show "Plus" uploads or whitelisted accounts and thus can be treated as not protected | Vimeo: no evidence employees actually viewed the specific videos; cannot infer viewing from Plus status or account-level whitelisting | Court granted summary judgment for Vimeo on 15 videos where the only evidence was Plus-upload or account-level whitelisting (no evidence of individual employee viewing) |
| Whether viewing a video that contains copyrighted music creates "red flag" knowledge under §512(c) | Plaintiffs: where videos play all or virtually all of recognizable songs (often with artist/title), a jury could find red-flag knowledge upon employee viewing | Vimeo: presence of original elements or colorable fair-use/license defenses means viewing should not automatically create red-flag knowledge; service providers shouldn't have to adjudicate fair use | Court denied summary judgment for Vimeo on 18 videos where a reasonable juror could find infringement "objectively obvious;" granted summary judgment for 2 videos where the infringing use was not objectively obvious (short background music, no song/artist displayed) |
| Whether the DMCA safe-harbor applies to pre-1972 sound recordings | Plaintiffs: DMCA safe harbor does not extend to pre-1972 recordings (Court previously held this) | Vimeo: §301(c) and legislative history suggest safe harbor could apply; there is room for disagreement | Court certified for interlocutory appeal the question whether §512 safe-harbor applies to recordings fixed prior to Feb. 15, 1972 (found controlling, novel, and likely to materially advance litigation) |
| Whether interlocutory appeal should be allowed on the red-flag knowledge standard | Plaintiffs asked broader certifications (right/ability to control, willful blindness, repeat-infringer policy); defendants sought certification narrowly on viewing => red-flag question | Plaintiffs: want many DMCA issues certified; Defendants: seek two narrow certified questions | Court certified the narrower red-flag question (whether viewing a video containing all or virtually all of a recognizable copyrighted song may establish facts giving rise to red-flag knowledge) and declined to certify plaintiffs' broader, fact-intensive questions |
Key Cases Cited
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (defines "red flag" and "actual" knowledge under §512 and discusses "right and ability to control")
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (service provider can have red-flag knowledge where material is current and well-known and objectively obviously infringing)
- Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966 (C.D. Cal. 2006) (context on inducement and design of tools that facilitate access to popular copyrighted works)
- Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (standard for motions for reconsideration: must point to controlling decisions or facts the court overlooked)
- In re Optimal U.S. Litig., 886 F. Supp. 2d 298 (S.D.N.Y. 2012) (reconsideration standard under Local Rule 6.3)