Record Labels Lawsuit Against Vimeo Lipdubs Moves Forward, With Some Good News And Some Bad News
from the win-some,-lose-some dept
We've been covering the major labels' legal efforts against Vimeo for its encouragement of lipdub videos before (that these videos frequently help to promote songs and make them more popular isn't even something that the major labels seem willing to recognize). In a new ruling, a judge has allowed the case to move forward with an upcoming trial, thus rejecting a full summary judgment. The ruling contains a mix of good things and bad things. Let's explore a few of them
First, the court agrees that Vimeo in general is eligible to receive DMCA safe harbor protections. While the labels made a ridiculous effort to argue that Vimeo's policies against infringement weren't robust enough, the court notes that the law only requires a "reasonable" implementation of a policy. Basically, the labels complain that they don't like Vimeo's infringement policy, but the court notes (correctly) that the labels' disapproval of the policy doesn't invalidate the policy or take away Vimeo's safe harbor protections. In fact, it's nice to see the judge recognize that what's "reasonable" may change based on the state of the company itself, and the wider market:
The Court’s finding of reasonableness is also informed by the evidence of Vimeo’s business circumstances as they evolved during the relevant period. That is, the policies Vimeo implemented in the first several years of its operation, as described above, were reasonable ones in light of the fact that Vimeo was, at the time, a small service provider, the twenty full-time employees of which were tasked with processing only a trickle (zero to five) of takedown requests per month. The evidence reflects that as the flow of those requests increased, Vimeo’s policy became more robust—first in the form of a “three strikes” rule and a blocked video list, implemented at some point after Vimeo’s inception, and eventually in the form of the “Purgatory” tool, implemented later in October 2008. That Vimeo’s enforcement mechanisms advanced in step with the realities of its growing business further supports the reasonableness of its implementation system.The court also rejects the silly argument that Vimeo's policy isn't good enough because it's not the same as YouTube's. The judge notes that this is a meaningless argument.
...simply because, as Plaintiffs point out, a YouTube user may earn two separate strikes for takedown notices received only three hours apart pursuant to a policy this Court has found to be reasonable..., it does not follow that Vimeo’s somewhat more lenient policy (three days, rather than two hours), creates a factual issue as to the reasonableness of that policy.There's also a silly and somewhat ridiculous claim by the labels that because Vimeo lets people download the videos, they should lose their safe harbor protections. The court makes quick work of that argument:
Plaintiffs have provided no case law—and the Court is not aware of any—holding or even suggesting that a service provider must be denied DMCA safe harbor protection because it allows its users to download content.Because of all that, Vimeo is able to get summary judgment on 144 of the 199 videos that were included in the lawsuit. But that leaves 55 which will go to trial. Ten of those were uploaded by employees. That quickly gets into a gray area. The DMCA only protects companies against actions of their users; not actions by the company itself. But... is a random employee using the company's tools to upload an infringing video an action by the company, or by the individual as a user. Here, the court decides that the issue is at least a big enough gray area that it should involve a trial rather than summary judgment:
Here, Plaintiffs cite evidence that Vimeo employees serve as an “editorial voice” for the Website... and emphasize that the web pages displaying these videos indicated that the video was posted by a Vimeo employee. In all but two of the videos, the web page also included the employee’s name.... Further, in several instances, a yellow box containing the word “STAFF”—the so-called “staff badge”—appeared next to the employees’ user names, as it does for all actions taken by an employee on the Website.... Based on this evidence, Plaintiffs argue that the ten employee-uploaded videos may not fairly be characterized as stored at the direction of users but rather must be characterized as stored at the direction of Vimeo through common law agency principles.This seems somewhat reasonable. It is an unclear issue that could involve further discussion. From all appearances, it seems to me to be more like the MP3tunes situation, but I'm sure the RIAA and its supporters will argue the opposite. We'll see how it shakes out at trial.
In response, Vimeo directs the Court to Capitol Records, Inc. v. MP3tunes..., reconsideration granted on other grounds..., in which Judge Pauley concluded that the employees’ personal use of the defendant’s website could not be the basis of a direct infringement claim against the defendant... In MP3tunes, it was undisputed that executives and employees of the defendant website downloaded and stored music using the website.... Citing testimony that the employees “maintained private accounts and used MP3tunes lockers for their personal benefit,” Judge Pauley denied summary judgment to the plaintiff on its direct infringement claim because “a genuine dispute exist[ed] as to whether any of the  songs in question were downloaded by employees in the course of their employment.” ...
On balance, it is less clear to the Court than it was to the court in Fung that a user would conclude that the employee-uploader was acting on behalf of the service provider. Reasonable minds could differ, as in MP3tunes, as to the extent to which the videos at issue here were uploaded by Vimeo employees in their personal capacities as opposed to as agents of Vimeo. Accordingly, a triable issue has been raised with respect to whether the employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope of their employment.
The ruling also has a pretty good discussion on the old question of "red flag knowledge." Here, the court is unpersuaded by the labels' argument that everyone should automatically know that these things are infringing:
Plaintiffs claim that Vimeo employees’ interactions with these fifty-five Videos-in-Suit necessitates a determination that Vimeo had actual or red flag knowledge of the videos’ infringing content. The Court disagrees. Despite the fact that these interactions are undisputed and that most, if not all, of the copyrighted songs used in the videos would be characterized by many as popular, and in some cases legendary—indeed, it is difficult to think of a song more iconic than The Beatles’ “All You Need is Love”—the Court is not prepared to hold that this automatically compels the conclusion that the service provider, through its employees, was aware of facts and circumstances that would make it objectively obvious to a reasonable person that those videos were infringing.That's good. Too many copyright maximalists like to pretend that if there's copyright content there, and an employee is aware of it, that's automatically "red flag" knowledge. The court doesn't deny that there might be red flag knowledge (and even expresses skepticism towards some of Vimeo's arguments), but says that this, too, is an argument to be heard at trial.
The court also rejects the argument of "willful blindness," again suggesting that just because the labels didn't like the way Vimeo acted, that does not equate to willful blindness.
What remains of Plaintiffs’ willful blindness argument amounts to little more than their frustration that Vimeo did not use sophisticated monitoring technology in its possession to seek out and remove instances of infringing content. As noted above, however, [the DMCA] and attendant case law make clear that service providers are under no affirmative duty to seek out infringement.The court also rejects the idea that Vimeo "induced" users to infringe on copyright, noting (again) that the mere use or even sanctioning of infringement is not enough.
This evidence simply does not rise to the level of that adduced in Grokster—either in quantity or in kind. In Grokster, the record was “replete with evidence” that defendants “clearly voiced the objective that recipients use [their product] to download copyrighted works.” ... The examples supplied by Plaintiffs reflect no such thing. To be sure, some of the videos discussed above created by Vimeo employees (for example, Lodwick’s lip dub) incorporated infringing music, and users’ submissions may have often incorporated the same. But the relevant standard at issue here—inducement by way of the exertion of substantial influence on the activities of users—cannot be met by evidence of stray instances of wrongful conduct by Vimeo employees on the Website and/or a generalized effort to promote videos that incorporate music. This is so particularly in light of the Supreme Court’s acknowledgement in Grokster that courts be “mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential.”There is one more really bad part of the ruling... and it's saying that there are no DMCA protections on pre-1972 sound recordings. This is an issue we've mentioned a bunch lately, with different courts coming to different determinations. Unfortunately, this time, the court says the DMCA safe harbors don't apply:
The Court shares the view that “it is for Congress, not the courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights granted under the Act and the limitations on those rights (such as section 512) set forth in the Act.” Copyright Office Report at 132; see also UMG Recordings, Inc., 964 F.Y.S.2d at 112 (it would “be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.”) Accordingly, the Court grants summary judgment to Plaintiffs for all applicable Videos-in-Suit.And so, this case is far from over. There are a lot of good things in the ruling, but the details at the trial are going to matter quite a bit as well, and the failure to cover pre-1972 recordings will continue to create a chilling effect on user-generated websites which now face some amount of risk for having such songs uploaded.