• District court grants in part and denies in part video-sharing website’s summary judgment motion for safe harbor protection under the DMCA for videos containing plaintiffs’ copyrighted music, finding that website employees’ “interaction” with certain videos created material fact as to knowledge of infringement as to those videos, and grants summary judgment for remaining videos.

Capitol Records, LLC, Virgin Records America, Inc., EMI Blackwood Music, Inc. (EMI), and various other entities associated with EMI (collectively, plaintiffs) brought a copyright infringement action against Vimeo, LLC, and Connected Ventures, LLC (collectively, Vimeo), based on Vimeo’s video-sharing website’s inclusion of 199 videos with music for which plaintiffs owned the copyrights, without their permission.

Vimeo’s website allows users who have created a user account to upload videos that they have created. Users can interact with the videos, including “liking” or commenting on videos. Vimeo moved for summary judgment, asserting “safe harbor” protection under the Digital Millennium Copyright Act (DMCA). Plaintiffs cross-moved for summary judgment, asserting that Vimeo was ineligible for safe harbor protection. The district court held that there were triable issues as to whether Vimeo was entitled to safe harbor protection for 55 of the 199 videos, because Vimeo employees had uploaded and/or interacted on Vimeo’s website with these 55 videos. The court held that Vimeo met the three threshold criteria for it to be qualified for protection under any of the four safe harbor affirmative defenses under the DMCA. First, it qualified as a “service provider” because it provides services over and above the mere storage of uploaded user content, such as allowing users to share videos. Second, it adopted and reasonably implemented a policy for repeat infringers because it has – and enforces – a policy that terminates service for repeat infringers, and users are required to agree not to infringe others’ copyrights. Third, it did not interfere with standard technical measures by copyright owners to protect their copyrights. 

The court then considered whether Vimeo established that it met the requirements of safe harbor protection under section 512(c), which only provides a defense for infringement claims “by reason of the storage at the direction of a user of material that resides on a system … controlled … by the service provider.” The court found a triable issue as to whether Vimeo was not entitled to safe harbor protection as to 10 of the videos at issue, which were uploaded by Vimeo employees, stating that reasonable minds could differ as to whether the employees uploaded these videos in their personal capacities (making them users for the purposes of the safe harbor) or in their capacities as agents for Vimeo (which would remove them from the safe harbor protection). The court rejected plaintiff’s assertion that because Vimeo permits downloading of videos on its site, it does not provide “storage” pursuant to section 512(c), concluding that no authority supported the automatic denial of the safe harbor protections simply because a service allows its users to download content. 

Section 512(c) requires that Vimeo establish that (1) it does not have “actual knowledge” of the infringement; (2) in the absence of such actual knowledge, it is not aware of facts or circumstances from which infringing activity is apparent (also known as “red flag knowledge”); and (3) it acts expeditiously to remove access to the infringing material upon obtaining such awareness. For 55 of the videos, Vimeo employees had interacted with the postings, including commenting on the videos or “liking” them. For those videos, the court found a triable issue as to whether Vimeo acquired actual or “red flag” knowledge of the infringing content. The court granted Vimeo summary judgment for the remaining videos, with which Vimeo employees indisputably did not interact. The court also noted that plaintiffs did not provide evidence that Vimeo was willfully blind to the infringement.

Section 512(c) requires that Vimeo establish that it does not have a right and ability to control the infringing activity and does not receive a financial benefit directly attributable to that infringing activity. The court held that under the tests articulated inPerfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) andMetro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), there was no triable issue of fact – Vimeo did not exert substantial influence on user activity via its monitoring program or through inducement. 

Finally, section 512(c) requires that Vimeo expeditiously remove access to infringing material after being notified of it. The court held that Vimeo met this requirement by removing the infringing material the same day that it received two separate notices of infringement from plaintiffs and within a few weeks after receiving a third notice of infringement from plaintiffs. 

Noting that the DMCA safe harbors do not apply to pre-1972 sound recordings, the court granted summary judgment to Vimeo for all the remaining 144 videos, except those containing sound recordings made prior to 1972, and granted plaintiffs’ cross-motion for partial summary judgment as to those videos.