• by Wendy Davis  @wendyndavis, January 3, 2014

A federal judge issued a mixed decision this week in a long-running dispute between Web video platform Vimeo and record labels about “lip dubs,” or videos of people lip-synching to well-known songs.

U.S. District Court Judge Ronnie Abrams granted Vimeo's application to ask the 2nd Circuit Court of Appeals to decide one of the key issues in the case -- whether the Digital Millennium Copyright Act's safe harbor provisions apply to music recordings created prior to 1972. Abrams' order paves the way for the 2nd Circuit Court of Appeals to decide how broadly to interpret the safe harbor provisions.

The DMCA's safe harbor provisions are critically important because they enable companies like YouTube and Twitter to allow users to post material that isn't pre-screened for copyright infringement. The safe harbors generally provide that Web services platforms aren't liable when users upload material that infringes copyright, as long as the platforms meet certain requirements. One key requirement is that the platforms remove the material upon request; another is that the site operators don't know the material is infringing.

But it's not clear whether the safe harbors apply to pre-1972 music. In September, Abrams ruled against Vimeo on that question. A New York appellate court also ruled last year in a case involving Grooveshark that the safe harbors don't apply to pre-1972 music. But a federal judge ruled recently in a lawsuit concerning MP3tunes.com that the safe harbors do apply to older music.

Abrams said this week that an appellate decision on the issue will “materially advance the ultimate termination of the litigation.”

Abrams also granted Vimeo's request to reconsider her earlier ruling in the case. In September, she ruled that Vimeo was entitled to summary judgment on 136 out of 199 video clips that were in dispute. This week, she ruled that Vimeo also was entitled to summary judgment on an additional 17 of those clips.

The original ruling would have allowed the record labels to proceed to trial regarding 55 clips that Vimeo employees “interacted” with, such as by “liking” them, or placing them on a “whitelist” that prevented other users from flagging them for terms-of-service violations. But this week, Abrams ruled that Vimeo can claim the safe harbors even when an employee “interacted” with a video.

At the same time, Abrams also gave the record labels a victory in the case this week. She ruled that the labels can amend their complaint to include an additional 1,476 clips on Vimeo. She rejected Vimeo's arguments that it would be unfairly prejudiced by allowing labels to revise their complaint at this stage. “The record shows that plaintiffs have contemplated amending their complaint -- and have made defendants aware of their intention-from the earliest stages of the litigation,” she wrote.