Major Labels Back To Going After Vimeo For Its Lipdubs

from the promoting-music-is-piracy! dept

You may recall that, back in 2009, a bunch of the major labels filed a copyright infringement lawsuit against online video site Vimeo, paying particular attention to the fact that the site had popularized “lipdubs” in large part due to this quite popular lipdub by Vimeo’s own staff of the song Flagpole Sitta by Harvey Danger.

Lip Dub – Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

While EMI insisted that that particular video and others like it were doing incalculable harm to itself and the musicians it represented, the lead singer from Harvey Danger actually noted that the video made him “incredibly happy” as it helped increase the popularity of the song.

Either way, that lawsuit sat on the shelf for a while, as the judge suggested that it ought to await the outcome of the somewhat similar Viacom/YouTube lawsuit. After that lawsuit got sent back to the district court by the appeals court, the major labels are apparently getting restless and have sought to revive the case against Vimeo, by seeking a summary judgment in their favor.

The case is a bit more complex than the YouTube case, which may spell trouble for Vimeo (and owners IAC), but that doesn’t mean that the labels are staying away from a whole bunch of absolutely preposterous arguments. The best thing that the labels have going for them in their argument is the fact that Vimeo employees posted videos that had infringing content. The DMCA safe harbors protect a website from user behavior, but not their own. So, legally, their argument seems a bit stronger on that front, but culturally, it still seems like a dumb argument, as highlighted by the singer’s comments above. Most people don’t think lipdubs should be illegal, because that seems silly. Lipdubs are about people celebrating and promoting the music they love in creative ways.

Really, that’s the crux of this lawsuit. While Vimeo may be in legal trouble, it really highlights the basic cultural divide at issue here. People who put together lipdubs spent a ton of time and effort to creatively enhance the music they love and share it with the world in a cool manner, which does not replace the music, but tends to advertise it. For those unfamiliar with the basics of copyright, saying lipdubs are illegal just feels wrong, even if there may be some legal backing to it.

Making things perhaps somewhat trickier for Vimeo is the fact that it does somewhat aggressively monitor the content on its site for other issues, and doesn’t allow a variety of other types of videos. The labels use this to imply that it is actively ignoring music copyright while blocking all sorts of other content:

Except for music, Vimeo strictly controls, monitors, and curates (in its words) the audiovisual works it copies, performs, and distributes. It prohibits – and uses its personnel and tools to review, monitor, and delete – all sorts of videos, including television programs, movies, and movie trailers, as well as “gameplay videos,” “commercial” videos (such as product promotions or real estate tours), “sexually explicit” videos, and “fan vids,” among others…. It enforces its discretionary and subjective guidelines to eliminate content that is not “Vimeoesque.”… All in order to mold its website and control its image…. Despite its pervasive involvement in and control of the content on its website, Vimeo does nothing to limit the infringing use of music on its website.

That may sound damning, but it’s not as strong as it sounds. Determining whether or not a video includes infringing music is not as simple as the paragraph makes it sound. Vimeo has no way of knowing whether or not the video maker properly licensed the song in question in most cases. The other things it monitors for are much easier for it to determine. This is a major issue that supporters of copyright law often ignore.

The labels’ attack on lipdubs is really kind of ridiculous when you think about it:

One of the early “creations” by Vimeo’s founder was a video format in which he “lip synched” to a commercial, copyrighted recording, synchronized the recording into the video during editing, and uploaded the video, making it available to every Vimeo user…. He named this “a lip dub,” and it was promoted as the “signature” Vimeo video genre, something that “put us [Vimeo] on the map.” …. As Vimeo and its users know, these popular lip dub videos, by definition, copy and incorporate copyrighted music without consent or license. … (If Vimeo “suddenly started to ban videos with copyrighted music, like lipdubs, then I would be pissed but I would have to realize it’s their final decision.”) That also is apparent from Vimeo’s instructions on its home page on how to create lip dubs…. (“Like a music video. Shoot yourself mouthing along to a song then synch it with a high quality copy of the song in an editing program.”).

Lip dubs were heavily promoted. Vimeo provided a “Lip Dub Stars” channel, labeling it a channel “we like” and securing commercial sponsorship for it…. Lip dubs were featured as a “Vimeo Obsession” on Vimeo’s home page…. “Lip dub” became one of the top seven key words that drew visitors to Vimeo …, and appeared (in several variants) in an internal chart of top “searches per day” on the Vimeo Website

Of course, one could make an argument that many lipdubs could be considered fair use, as being transformative. But, the labels assume that, by default, they all must be infringing.

Furthermore, among the more dubious arguments made by the labels is claiming that Vimeo’s decision to not use a tool to filter out copyright infringement is the equivalent of “willful blindness.” This is wrong. The law does not say that sites need to make use of filters and other tools to find possibly infringing works — in part because a tool cannot properly assess if a work is infringing. They also make the argument that because Vimeo put “lip dub” in meta tags it’s proof that they were promoting infringement. That seems very weak for a number of reasons, not the least of which is that search engines haven’t used meta tags in ages. Also, the labels argue that because Vimeo offered licensable songs for sale to videomakers it knew that it was committing and encouraging infringement. This seems particularly bizarre. It’s attacking Vimeo for actually doing the right thing and helping its users license music. But, just because they do that, it doesn’t give them direct knowledge of whether or not users licensed music elsewhere. Oh yeah, the labels also — ridiculously — claim that pre-1972 songs are not subject to the DMCA, despite multiple courts rejecting this argument.

All that said, it still seems likely that Vimeo may have an uphill battle here. The fact that employees uploaded infringing works is going to make the case difficult, even if there are reasonable arguments for why they did it. The filing also has a bunch of quotes suggesting general awareness of infringement on the site, but “general” awareness is not enough to lose DMCA safe harbors. You need to be aware of specific infringement, and it’s not entirely clear that that’s true. There’s one example of someone saying they weren’t sure if something was licensed and offering to make a copy without music just to be safe, but that’s not the same as knowing that the effort is definitely infringing. The other part that might come back to bite Vimeo is the lack of having a “repeat offender” policy for its DMCA takedowns. This is something that has tripped up others as well. The law requires such a policy, but it’s unclear if Vimeo actually had one until about the time it was sued.

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today — and how they help spread it. It’s really shameful to see them on the attack, rather than figuring out ways to support it.

Filed Under: , , , ,
Companies: capitol records, caroline records, emi, riaa, vimeo, virgin records

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Comments on “Major Labels Back To Going After Vimeo For Its Lipdubs”

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69 Comments
Ninja (profile) says:

I almost thought they were attacking their own service but it was Vodo the name, right? Not that they wouldn’t do this kind of stupidity, right?

In any case I’m not quite sure if Vimeo is entirely innocent. I haven’t seen such videos but are they being used to promote the service or the employees just did it for fun and posted? Regardless of being employees of Vimeo why can’t they use the service to make their own personal stuff available? The absurdity of such reasoning is mind boggling. But it’s also understandable, the MAFIAA doesn’t like fair use, they tend to disregard it (which sounds kind of fair considering most of the world ordinary people disregard copyright laws as a whole).

In the end it’s yet another reason why copyright should be completely ignored by the ordinary Joe.

pixelpusher220 (profile) says:

Re: Re: Re:

Perhaps so, but what if the lip dub was done by Syrian ‘President’ Assad while buttfscking a porcupine or say a video montage of goatsx man?

There are downsides to having your work associated against your will…

I’m all in favor of copyright being drastically reduced, but ‘upside’ associations such as Vimeo’s lip dubs aren’t the only side of association.

MrWilson says:

Re: Re: Re: Re:

Let’s see. It’s non-commercial. It doesn’t reduce the marketability of the original product. It does use the full song, but not using the full song would make the lipdub pointless. The nature of the work is promotional for the song. After seeing that, I want to go see the original music video for it. Hm. Fair use by my count.

Anonymous Coward says:

Re: Re: Re:2 Re:

Bzzt.

It’s completely commercial. It drives viewers to Vimeo’s site; precisely their business model.

It does reduce the marketability of the original product, if people choose to listen to the song via Vimeo’s version, as opposed to one being monetized elsewhere.

So yeah, epic fail on their part. And yours.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

It does reduce the marketability of the original product, if people choose to listen to the song via Vimeo’s version, as opposed to one being monetized elsewhere.

It’s pretty hard to see how this would happen in any numbers of any consequence. The OP even cites one case where the lipdub increased sales of the original — which is what we would reasonably expect.

In any case, whether or not this is fair use in the eyes of the court, it pretty clearly should be. In my opinion, this is exactly the sort of thing that copyright should not prohibit because doing so works against the entire purpose of copyright.

JMT says:

Re: Re: Re:5 Re:

“And in matters of the law, your opinion is uninformed, obtuse and incorrect.”

Exactly the same can be said of your opinion of culture. In case you’re too obtuse to realise it, people really like creating and watching lipdubs. Your precious laws can do nothing to change that or stop it happening. All they can do is antagonise fans and customers. Y’know, the ones with the money.

Anonymous Coward says:

Re: Re: Re:4 Re:

“this is exactly the sort of thing that copyright should not prohibit because doing so works against the entire purpose of copyright.”

The intent of copyright law hasn’t been worthy of court or legal consideration for decades.

Why wouldn’t lip-dub’s fall under the exception for parody? Not all parody needs to be bad.

There really needs to be much more distinction between commercial use and personal use – where’s that RNC paper when it’s needed? (chickens)

Anonymous Coward says:

Re: Re: Re:3 Re:

“It does reduce the marketability of the original product, if people choose to listen to the song via Vimeo’s version, as opposed to one being monetized elsewhere.”

With that kind of mentality, you’re basically saying that watching any kind of music video reduces the profitability of selling a single, which is kind of moronic given that the music videos help sell the product.

Anonymous Coward says:

Re: Re: Re:5 Re:

If a group of people can have fun making a video that does better than the one the studio puts out …. What’s the point of signing with labels?

This action is CYA. Labels have lost their production edge and now they are loosing promotion and distribution edge. That’s what this case is about.

Average people can make better commercials.

Anonymous Coward says:

Re: Re: Re:3 Re:

So does every other form of entertainment, ever.

right now im not listening to any music because im taking my time to write here.

after i get out of work i wont be listening to music because i will be talking to my girlfriend.

after dinner i wont be listening to music (except for team fortress 2 in game audio) because i will be playing video games.

on the way home from work i wont be listening to any of the originals “being monetized elsewhere” because i will be listening to some other song on the radio.

you have totoally forgotten that people watching the lipdub might actually have never heard of the original before their friend directed them to the lipdub and then afterwards they wanted to know what the original sounded like, so they find the original on youtube.

guess who got paid? your musician did.

guess who also go paid? people who did other work to drive that lipdub to the person who eventually ended up hearing your musicians work.

but im sure you dont like people being driven to your musicians music, right? Right?

i know when i see remakes of videos ive never seen before, or for songs ive never heard before, i seek out the original and usually its on the labels youtube channel.

Anonymous Coward says:

Re: Re: Re:4 Re:

“right now im not listening to any music because im taking my time to write here.”

See, even just writing about the lipdubbing hurts the marketability of the music and not just the music that was lipdubbed but all music, you’re proving the copyright maximalists even more right.
Ever label and every musician should obviously have the right to sue for each and every lipdub even when it has nothing to do with their music.
Will no one think of those musicians that no one wants to lipdub to.

Milton Freewater says:

Re: Re: Re:3 Re:

“It’s completely commercial. It drives viewers to Vimeo’s site; precisely their business model.”

False. “Commercial” does not mean “makes somebody money.” Paintings are not “completely commercial” even though they motivate me to pay money to museums.

“Commercial” means “produced for profit,” which this was not. It could just as easily be on YouTube, where I first saw it. I see your point, but they’re on the edge, not over it.

“It does reduce the marketability of the original product, if people choose to listen to the song via Vimeo’s version, as opposed to one being monetized elsewhere.”

No one is watching this video to choose to listen to the song. The whole song is not even used. They are watching the video for the video component. It competes with any other posting of the song ONLY in that it ADDS value.

I actually think the rightsholder has entitlement here – credit, permission within reason, percentage of profits – but you are off base. And in any case, if they refuse to settle and head straight to court, they’ve abandoned any moral high ground they had.

Anonymous Coward says:

Re: Re: Re:

i know, right! sucks to be a member of society. you know, copyright is a civil offense, right? sucks to have to actually lift a finger to defend yourself, doesnt it?

gosh, life would be so much easier if all civil torts were policed by the powers that be.

but since they aren’t, the only surefire way to keep your content from being reshared and reused is to never release it to anyone, anywhere.

my point is that until guns are used to police day to day infingement it will continue as ever.

ltlw0lf (profile) says:

Re: Re: Re: Re:

my point is that until guns are used to police day to day infingement it will continue as ever.

Guns are currently used to police other crimes on a regular basis, yet the crimes still exist. The criminals either figure out how to avoid the guns, work at maximizing profit/mayhem until the guns show up, or have very short careers due to their own stupidity.

Even if guns were used to protect the industry, people would still continue to infringe. Many would still infringe because of the same reasons they currently infringe. What would change, however, is that it would push the revolt of the public against those in power to the extreme, since most people view copyright as something that is overall, very good, but something that has become corrupted by those in power to maintain their power over things they didn’t have power over before. The first person shot for downloading Bieber from a friend would likely cause such an outrage that the politicians and their friends in the entertainment industry would likely distance themselves so quickly from each other that they would break fundamental laws of physics.

ltlw0lf (profile) says:

Re: Re: Re:3 Re:

until the earth is ended, infringement will continue as ever.

Which is the main point of what the grand-grand-grand-poster was saying. It is human nature to copy and remix…it is how we learn, adapt, and grow. People will continue to do it regardless to how many laws make it illegal to do so. Until the entertainment industry and politicians get that through their heads, we’ll have the current situation we are in.

The only fix to this problem is to drop copyright and fix the entertainment industries’ business model. Will people still pay for entertainment? They always have in the past…why should we think they will change? Even before copyright existed, people paid for entertainment. Figuring how to work within human nature to assure that folks still get paid is what the politicians should be focusing on.

ltlw0lf (profile) says:

Re: Re: Re:5 Re:

People break the speed limit. Better to drop speed limits.

Your point? Some places they have done just this.

The problem is, you are equating a civil law with debatable consequences to a criminal law based on saving people’s lives. There are many, myself included, who believe that there are many cases where copyright actually hinders and hurts.

/epic facepalm

I agree. You probably should think before posting so you don’t do it again.

Anonymous Coward says:

The fact that people are now able and also really love to interact and participate more with cultural content, is so at odds with copyright as it stands.

Copyright is now painful and toxic in so many ways to the public that it never was in the days before mass communication was viable.

Total mess. Total overhaul required.

Fair use and cultural commons etc should not be exceptions to rules which are basically about commercial interest.

It should be the other way round. Culture should come first and commercial interests should be exceptions. Culture shouldn’t require a defense.

Rigo (profile) says:

Re: Re: Re:

The people making the videos aren’t making any money, so a universe in which artists have to be comped for lipdubs is a universe where lipdubs just aren’t a thing.

Who does that benefit? No one in the history of ever has said “hey, I was going to buy this single but I just saw this dude’s lipdub so forget that noise”, but at least some people have decided to check an artist out after watching the dub.

Anonymous Coward says:

Re: Re: Re:

On the contrary, whenever someone who could create thinks to themselves “but what if I get sued for copyright violations” they and anyone who would go on to view their work and benefit from it are hurt. I mean just look at the literal scenario above, everyone that enjoyed that video as well as the people that worked to create it would be hurt. Even one of the creators of the song, the ones you claim ‘aren’t being compensated,’ said it made them “incredibly happy.” Stopping the video harms them too.

JMT says:

Re: Re: Re:

“No one is being hurt in any of your FUD scenarios but the creators who aren’t being compensated.”

You must’ve skipped over this rather important tidbit in the article:

“…the lead singer from Harvey Danger actually noted that the video made him “incredibly happy” as it helped increase the popularity of the song.

His exact words:

“That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you’s.”

Can you please explain to all of us how this artist is “hurt”. He doesn’t sound very hurt to me, he sounds pretty chuffed. He certainly doesn’t should like he thinks he should be compensated for anything.

Hephaestus (profile) says:

My personal opinion is that to many kids watched law and order. That lead to people believing that being a lawyer was easy. Which lead to to many people becoming lawyers. Which lead to all these lawsuits. All driven by the insidious plan by the content industry, to create lawyers and law suits, by creating the show law and order.

Now give me your other leg.

Anonymous Coward says:

Re: Re: Re:

Wait…is there actually a Law and Order: Civil Copyright Infringement show on now?

They were working on it. The main actor visited Average Joe to get a feel for the role, but he ended up dropping his role in the project because he realized it would be detrimental to his career to be that bat-shit crazy on camera (would have type-cast him.) Then the content industry figured how much money they weren’t getting because nobody even bothered to download the pilot. So they went for another round of CSI/Law and Order: Special Victims Unit and called it a day.

Anonymous Coward says:

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today — and how they help spread it.

That is because their definition of culture is that we publish it and everybody else pays to consume it, under the terms that they put on the material. Any other use is a copyright violation, unless licensed and controlled by us the MAFIAA.

/s

Anonymous Coward says:

The public needs to tune out major labels if they want to use music as a part of their lives. Thanks to the ridiculous lawsuit publicity, many have already forgotten music and spend their money on games and other things. The major labels have already lost out on 2 generations of customers and they are aiming for a 3rd. FINE.

Band and musicians need to figure out that labels will hurt sales and start looking towards other distribution models, like games or seeding P2P (Promo Bay?) and they will learn they can do better and make more money on their own.

Oh wait, some were trying that and they were met with SWAT teams taking MegaUpload down.

Well, that leaves Bandcamp.

The point is for labels if they don’t want anyone to hear the stuff, then nobody will buy it. Stop blaming pirates when the business model sux.

I’m surprised no one mentioned YouTube taking down billions of label videos due to fake “likes”. That’s how popular some of this label stuff is – NOT.

I’m surprised noba

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