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Music labels can press Vimeo on copyright claims — judge denies “safe harbor”

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The long-running fight over who is responsible for removing copyrighted content on video sites took a new twist as a New York federal judge refused to throw out a case against Vimeo,  a popular site that lets users share clips.

In a ruling this week, US District Judge Ronnie Abrams held that so-called “safe harbor” laws — which can help internet sites avoid liability for the actions of their uses — may not shield Vimeo since its employees may have known that users were uploading infringing works by the likes of the Beatles and Jay-Z.

Vimeo had asked that the judge throw out the copyright case, which was filed by EMI and other major record labels, citing a recent landmark decision that said YouTube was not responsible for thousands of unauthorized videos posted during the site’s early days.

The Vimeo case, like the YouTube one, turns in large part on what content owners have to do to show “red flag” knowledge — a situation where a reasonable person would conclude that a website knew about a case of copyright infringement but chose to ignore it.

In the bigger picture, the Vimeo and YouTube cases are part of a long-running attempt by the entertainment industry to bend copyright law so that websites are required to take an active role in patrolling for piracy. Under the current law, which is intended to protect copyright holders without smothering the internet economy, sites are not responsible for their users so long as they respond to takedown requests — and are not complicit in the infringement.

In order to preserve their safe harbors, sites must also show that they don’t “control” the content that appears. In the Vimeo case, the music industry argued that the site’s monitoring system, under which employees sometimes promoted or “liked” pieces of content, meant that Vimeo had an active role in controlling the content.

The judge rejected that concept, and said a monitoring system — even one in which a site’s employees could create a “Staff Picks” list or comment on videos — did not mean the site forfeited its safe harbor.

The judge did, however, say the court was “troubled” by “disconcerting” remarks from Vimeo employees, such as telling a user “don’t ask, don’t tell ;) ” and proposing to write “FUCK EMI” under a video. The key part of the ruling, however, said such remarks did not mean that Vimeo had knowledge about the specific videos that are at issue in the case.

As a result, the case will now look more closely at 55 specific videos in which Vimeo might have had actual or red flag knowledge; the court threw out 144 copyright claims related to other videos on the grounds Vimeo was covered by the safe harbor rules in these cases.

In the bigger picture, the ruling does not do much to shift the existing safe harbor rules which were affirmed in the YouTube case. The court also took care to say that Vimeo was not akin to sites like Grokster, which lost their safe harbor protection because they encourage users to infringe.

You can read the ruling, which contains a soup-to-nuts explanation of safe harbors, for yourself below (I’ve underlined some key passages). And if you can’t get enough of this stuff, a primer on YouTube and safe harbors is here.

Vimeo: refuse SJ

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6 Responses to “Music labels can press Vimeo on copyright claims — judge denies “safe harbor””

  1. OK, I had a long chat with the head of French Fried Music, Eileen Goldsteen. Sitting in the departure lounge of Livingstone Airport in Zambia we shared a table, she had just completed her honeymoon. We chatted about music, I mentioned I was a journalist and she owned the biggest music publishing company in the world. Interestingly this lady was the voice for that song in the 1960’s “These boots are made for walking” in the foreign languages. Her top published band to date, is Metallica. Wow.

    Iasked her the question relating to websites like mixcloud, soundcloud and Vimeo.
    She responded to comment that there is not much they can do about these type of websites, they are out there and carrying on with it, and they are not attempting to take action against such sites.

  2. Skott Klebe

    I agree with your rewording.
    The substantive difference is that “denying safe harbor” would be almost the same as saying that Vimeo had lost, whereas “denying summary judgment on the safe harbor questions” means that the case is really about to begin.
    It’s important breaking news. The parallels with YouTube are pretty close – there were some troubling e-mails from early in their history, as well.
    The DMCA safe harbors have proved exceedingly strong to date. It will be interesting to see how this case bears out.

  3. Skott Klebe

    It’s inaccurate to say that safe harbor was denied. The judge decided that
    there are questions of fact that need to be decided at trial; if Capitol and EMI
    are unable to prove that the 55 videos at issue indicate that Vimeo had actual
    knowledge of infringing material, safe harbor will still apply.
    Both sides were applying for summary judgment – essentially, an instant ruling – which can only be granted when all of the applicable law and all of the facts of the case are undisputed.
    DMCA Safe harbor isn’t an immunity from trial; it’s avoidance of liability for the acts of a the users of a complying online service provider. Vimeo still has exactly what YouTube has had for all of these years: the opportunity to prove in court that it didn’t really know what its users were doing.

    • Hi Skott, thanks for the thoughtful comment. I don’t think it’s inaccurate to say that safe harbor was denied. But, yes, it would have been more exact to say something like “judge refuses to grant summary judgment on safe harbor grounds.”

      The story was intended to provide a broad overview of the ruling and the background, but perhaps I should have provided more details on how the case remains at a preliminary stage, and that Vimeo still has an opportunity to show it benefits from the safe harbor.