Vimeo Prevails In Longstanding Copyright Battle With Record Companies

After 16 years of litigation, Vimeo has defeated copyright infringement claims by Capitol Records over music posted to the platform by its users.

In a ruling issued Monday, the 2nd Circuit Court of Appeals in New York said Vimeo was protected by the “safe harbor” provisions of the Digital Millennium Copyright Act, which broadly immunize web platforms from liability when users upload infringing material, provided that the platforms take down copyrighted material upon request.

Those safe harbors have some exceptions -- including one that applies when web companies know they're hosting infringing material -- but the 2nd Circuit said the record labels failed to prove that exception applied to Vimeo.

“We reject plaintiffs’ arguments that Vimeo lost the protection of the safe harbor by virtue of having red flag knowledge that user postings were infringing and then failing to remove those postings from its website,” Circuit Court Judge Pierre Leval wrote in an opinion joined by Judges Barrington Parker, Jr. and Sarah Merriam.

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The long-running battle dates to 2009, when the record label EMI (now owned by Universal Music) and its holdings, including Capitol Records, sued Vimeo for copyright infringement based on allegations that it encouraged users to post video clips of themselves lip-synching songs by musicians like Billy Idol and KT Tunstall.

"Vimeo has extensive knowledge of the use of copyrighted recordings on its Web site, and Vimeo encourages and induces its users to copy, adapt, and upload copyrighted recordings," EMI alleged in that case.

U.S. District Court Judge Ronnie Abrams in New York initially ruled that the record labels were entitled to a jury trial regarding some of the musical works because there was evidence that Vimeo employees had interacted with clips that included those tracks.

But in 2016, the 2nd Circuit reversed that ruling, writing that employees' interaction with clips -- even clips that contain famous music -- doesn't in itself prove that those employees knew the music had been uploaded without authorization from the copyright owner.

That ruling returned the case to Abrams for further proceedings. In May 2021, Abrams definitively ruled in Vimeo's favor regarding the user-uploaded clips, writing that service providers like Vimeo “cannot be presumed to know that content on its site is licensed or does not qualify as fair use.”

The record companies appealed to the 2nd Circuit, which on Monday upheld Abram's ruling on Monday.

The appellate judges wrote that even if web platforms and their employees are aware that a particular piece of music is famous, they don't necessarily know whether whoever uploaded the music had a license to do so.

The record labels' evidence “does not support it being apparent to Vimeo employees that the music they heard on any particular video came from a label that did not offer licenses,” Leval wrote in the 28-page opinion.

He added that even if it should have been apparent that some users lacked licenses for the music they uploaded, Vimeo didn't know whether that material was protected by fair use -- a concept that allows people to post copyrighted works without authorization.

“We express no views on the strength or weakness of arguments that such lip-dubs or dances or acting performances qualify as fair use,” Leval added. “We are merely pointing out the weakness of Plaintiffs’ argument that Vimeo had red flag knowledge of infringement based on mere observation of the videos by employees with no training in copyright law.”

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