• by Wendy Davis , Staff Writer @wendyndavis, November 6, 2015

Video-sharing service Vimeo on Friday urged federal appellate judges to rule that the company isn't automatically liable for copyright infringement if users upload videos that incorporate music recorded before 1972.

Typically, the Digital Millennium Copyright Right Act's "safe harbors" protect companies like Vimeo when users upload infringing clips, provided that the Web companies remove pirated material upon request.

But Capitol Records, which sued Vimeo back in 2009, recently convinced U.S. District Court Judge Ronnie Abrams in New York that the DMCA's safe harbors don't apply to music recorded before 1972. The record label's argument hinges on a Copyright Act provision stating that the DMCA doesn't “annul” or “limit” common law copyright protections for pre-1972 sound recordings.

Vimeo, which is appealing Abrams' ruling to the 2nd Circuit Court of Appeals, says the DMCA's notice-and-takedown approach wouldn't make sense unless it applies to all copyrighted material.

Vimeo and its supporters, including the digital rights group Electronic Frontier Foundation, argue that Congress passed the safe harbors in order to enable companies to offer interactive platforms where users could post material dynamically. If the safe harbors don't apply across the board, companies would have to vet all clips in advance, to make sure that they don't include pre-1972 recordings, Vimeo and its supporters say.

The company also says it has no good way to even know whether clips incorporate pre-1972 music. “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 papers. “How many people can distinguish between a 1960 recording and a 1980 recording of Gershwin’s 'Rhapsody in Blue?'

Some judges this morning appeared sympathetic to Vimeo's argument.

Circuit Judge Gerard Lynch told Capitol's lawyer that eliminating safe harbor defense for pre-1972 music "will impose precisely the burden that Congress intended to lift" from companies like Vimeo.

Capitol's lawyer, Carter Phillips, responded that companies like Vimeo could use some sort of technological filter to weed out pre-1972 music.

Vimeo's attorney, Kathleen Sullivan, quickly dismissed that suggestion.

"Technology is not the answer," she told the judges.

Sullivan added that Congress has never required companies to use technological filters to weed out infringing material, and that there is no current filter that identifies music recorded before 1972.

Questions about whether the safe harbors apply to pre-1972 music haven't yet been definitively resolved by the courts. A state appellate court in New York recently ruled that the Web company Grooveshark wasn't entitled to safe harbor protections for pre-1972 music, but a federal judge in Manhattan ruled differently in a lawsuit involving MP3tunes.com.