Record Labels Ask Appeals Court To Rule Against Vimeo

Web services providers like Vimeo aren't protected from copyright liability when users' upload music that was recorded before 1972, a coalition of record labels argue in new papers filed with a federal appellate court.

The labels, including Capitol Records, are asking the 2nd Circuit Court of Appeals to largely uphold a ruling issued earlier this year by U.S. District Court Judge Ronnie Abrams in New York. She said Vimeo was ineligible for the Digital Millennium Copyright Harbor Act's safe harbor protections for any user-uploaded clips with pre-1972 music.

This week, the record labels filed papers asking the 2nd Circuit to uphold Abrams' ruling. They argue that the “plain language” of the Copyright Act supports the idea that Congress intended for pre-1972 music -- including hits by The Beatles and Nat King Cole -- to be treated differently from music recorded after that date.

Vimeo, which is appealing Abrams' ruling, argued in its papers that companies such as itself have no practical way to distinguish pre-1972 recordings from newer ones. “Should all staff be expected to know that most of the tracks on the Rolling Stones’ "Exile on Main Street" album were recorded between June 1969 and February 1972, even though the album itself was not released until May 1972?” the company asked in its appellate brief.

The Digital Millennium Copyright Act of 1988 contains safe harbor provisions that immunize Web services companies from infringement liability for material uploaded by users, as long as the companies meet certain requirements. One is that they take down the material upon request. Another is that they don't know about infringing content on the service.

But the Copyright Act of 1976, which overhauled U.S. copyright law, says it doesn't annul any “common law” rights that existed before Feb. 15, 1972. The record labels contend that the provision preserving pre-1972 common-law rights means that the DMCA's safe harbors don't apply to older music.

Different judges have reached different conclusions about that question. A New York appellate court ruled last year in a case involving Grooveshark that the safe harbors don't apply to pre-1972 music. But a federal judge ruled in a lawsuit concerning MP3tunes.com that the safe harbors apply to older music.

The battle between Vimeo and the record labels dates to 2009, when Capitol Records sued Vimeo in federal court in Manhattan for hosting “lip dubs” -- or videos of people lip-synching.

A host of tech companies, including Google, Facebook and Twitter, have backed Vimeo in the dispute. Digital rights groups including the Electronic Frontier Foundation also filed papers supporting Vimeo. The EFF says in a friend-of-the-court brief that treating pre-1972 and post-1972 music differently would “create an impossible burden for service providers and would stifle innovation.”

"Vinyl Record" photo from Shutterstock"

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