Capitol Records, LLC v. Vimeo, LLC

The Digital Millennium Copyright Act's "safe harbor" provision did not apply when the alleged infringer was aware of facts from which infringing activity was apparent. If awareness was derived from viewing an infringing work, the infringement must be "objectively obvious."

Opinion (Abrams): Vimeo, LLC ("Vimeo") is a website which hosts user uploaded video content. Vimeo requires its users to create, or participate in the creation of, the videos they upload. Capital Records, LLC ("Capital") filed suit against Vimeo in 2009, alleging that Vimeo was hosting videos which infringed on Capital’s copyrights. Vimeo did not dispute that Capital’s copyrighted music was used without authorization in all 199 videos named in the suit, but Vimeo nevertheless moved for summary judgment on the grounds that their actions were protected by the “Safe Harbor” provision of the Digital Millennium Copyright Act. Capital filed a cross motion for summary judgment. On September 18, 2013, the court issued an order: (1) granting Vimeo’s motion for summary judgment with respect to 136 videos; (2) granting Capital’s motion for summary judgment with respect to 20 videos which contained music recorded before February 15, 1972; and (3) denied both parties motions with respect to 43 videos which Vimeo employees interacted with, thus creating a disputed issue of fact as to whether Vimeo was "aware of facts or circumstances from which infringing activity is apparent." Vimeo subsequently filed a motion for reconsideration as to 35 of the videos that court determined presented triable issues of fact based upon evidence that Vimeo employees had interacted with the videos. Vimeo argued that, for 15 of the videos, there was no evidence that Vimeo employees viewed the offending videos. Vimeo further asserted that the infringing nature of the 35 videos was not “’objectively obvious to a reasonable person,’ as the Second Circuit has required to support a finding of red flag knowledge. The court noted that, for the 15 videos that Vimeo identified, the only evidence of Vimeo employee interaction was that the users in question were “PLUS” member with whom Vimeo employees had interacted at the user account level. Thus, because there was no evidence that Vimeo employees ever viewed the videos themselves, the court GRANTED Vimeo’s motion for summary judgment as to the 15 videos. The court also GRANTED Vimeo’s motion for 2 videos after the court found the infringement in those videos was not “objectively obvious.” The court DENIED Vimeo’s motion as to the remaining 18 videos.