Vacating a district court’s decision, the US Court of Appeals for the Second Circuit explained that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protects material posted on websites of online hosts from liability, even for so-called pre-1972 recordings that are not covered by federal copyright law. Capitol Records LLC, et al. v. Vimeo LLC, Case No. 14-1048 (2d Cir., June 16, 2016) (Leval, J).

A group of record and music publishing companies filed suit against Vimeo, an online video platform, alleging that Vimeo was liable for copyright infringement because of 199 videos posted on Vimeo’s website. The videos contained musical recordings for which the plaintiffs owned the rights. Vimeo requires its users to upload only material that they have either created or participated in the creation thereof. Vimeo moved for summary judgment, arguing that it was protected by the safe harbor provision under 17 USC § 512 (c).

The DMCA protects internet service providers from liability when users upload copyrighted content, while requiring such providers to remove the material if they receive notice of the infringement or otherwise become aware of the infringement.

The district court found that Vimeo was protected under the DMCA’s safe harbor provision for 153 of the videos posted on its website, but that the safe harbor provision was not applicable to recordings earlier than 1972 (the year Congress first included recordings in the scope of federal copyright law) because those recordings are protected by state law. The district court also found that Vimeo could face lawsuits over whether it had known of “red flags” that made infringement apparent. The plaintiffs and Vimeo both appealed.

The Second Circuit explained that the protection afforded by the DMCA safe harbor provision includes pre-1972 sound recordings even though those recordings are protected by state copyright law and not federal copyright law. Exempting the old tracks from the DMCA’s system would “defeat the very purpose Congress sought to achieve in passing the statute,” namely, to shield online hosts from liability if they follow the rules. “Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws,” which would be contrary to the purpose of the DMCA.

The Court also concluded that Vimeo was entitled to protection under the DMCA safe harbor provision even though its employees viewed and “liked” videos containing copyrighted songs and encouraged specific infringements. Once a defendant demonstrates that it qualifies for DMCA safe harbor protections, the burden shifts to the plaintiff to present facts to show that the defendant had actual or red flag knowledge of the infringing activity. Here, the plaintiffs’ evidence was not enough.