Record Industry Presses Battle With Vimeo Over Old Music

The record labels and the online platform Vimeo this week renewed a longstanding battle over music recorded before 1972 -- including tracks by Beatles, Elvis Presley and Aretha Franklin.

After initially suing Vimeo for infringing copyright to the tracks, Capitol Records is now pursuing a claim that Vimeo engaged in "unfair competition" by allegedly allowing users to upload music that was recorded in the middle of the last century.

The fight between the two companies dates to 2009, when record labels sued Vimeo over "lip dubs" -- videos featuring people lip-synching to famous songs -- that incorporated copyrighted music. Vimeo defended itself by arguing that it was protected from liability for users' uploads under the Digital Millennium Copyright Act, provided it removed pirated clips upon the owner's request.

Capitol countered that the Digital Millennium Copyright Act doesn't apply to tracks recorded before 1972. The wording of that law is ambiguous, and Capitol initially convinced a trial judge to rule in its favor on the question. But last year the 2nd Circuit Court of Appeals sided with Vimeo, ruling that Capitol's interpretation of the law "would defeat the very purpose Congress sought to achieve."

In other words, exempting material from the DMCA would effectively force web companies to proactively police users' posts for potential infringement -- which, as a practical matter, would make it all but impossible for many companies to continue hosting material uploaded by users.

The appellate court wrote: "Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws."

Earlier this year, the Supreme Court refused to hear Capitol's appeal.

Now, the record label says it wants to prove that Vimeo engaged in "unfair competition" under New York law. Capitol alleges that has spent "large sums" to produce the music, and that the record label alone has the right to control the distribution of material recorded before 1972.

This week, Vimeo slammed that claim, arguing that Capitol is attempting to re-argue the same issues that were already decided.

"Their claims of unfair competition are nothing more than alleged copyright infringement by another name," Vimeo writes. "This is nothing more than a re-release of an old record with a new album cover."

The company is asking U.S. District Court Judge Ronnie Abrams in New York to dismiss the claim.

Capitol is expected to respond to Vimeo's arguments in August.

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