Any employer with a web site or social media page that invites users to provide content will probably be interested in a September 18, 2013 case from the U.S. District Court for the Southern District of New York involving Capitol Records and video-sharing site Vimeo. Capitol Records, LLC v. Vimeo LLC, No. 09 Civ. 10101 (RA) (S.D.N.Y. Sept. 18, 2013). Capitol Records and others claimed that 199 videos posted on Vimeo were infringing their copyrighted music.

We have previously written on the Viacom v. YouTube case, and the “safe harbor” that the Copyright Act provides to sites that happen to have infringing content posted on them. Copyright Safe Harbor for Third Party Content Unlike YouTube, Vimeo invited users to submit only original videos, but some users added music from third parties to their videos and then uploaded them to Vimeo. Although Vimeo’s practices relating to infringing videos evolved over the years, Vimeo had a long-standing policy prohibiting users from contributing infringing content, which Vimeo users were required to acknowledge. Vimeo also stated in its terms that it would terminate the accounts of repeat infringers—and it in fact occasionally terminated accounts for a single instance of infringement. Vimeo also followed the “safe harbor” requirement by acting upon notices of claimed infringement (including prior claims received from the record companies that were plaintiffs in this lawsuit).

Much of the court’s 56-page opinion was devoted to analyzing Vimeo’s actions with respect to the safe harbor, much like the trial court in Viacom v. YouTube. This court generally granted summary judgment in Vimeo’s favor for about 75% of the videos that were the subject of the lawsuit, but the court opinion had several noteworthy aspects:

  • The court granted summary judgment to the record companies on any music that was recorded prior to February 15, 1972, holding that the “safe harbor” does not apply to these songs. Slip op. at 55.
  • The court ruled that Vimeo’s privacy settings were not an interference with “standard technical measures” that prevented copyright owners from collecting information in order to issue takedown notices. Slip op. at 23.
  • The court ruled that actions by some Vimeo employees raised triable issues of fact as to whether Vimeo had “actual or red flag knowledge of the infringing conduct” with respect to 55 of the videos. Slip op. at 30. Specifically, the plaintiffs claimed the Vimeo employees:
    • Entered comments or “liked” some of the videos in the lawsuit. Vimeo used a “staff badge” on the comment or “like” that indicated when an employee took such an action;
    • Placed some videos on channels such as “Staff Picks”;
    •  “Whitelisted” some videos by turning off the ability for a user to flag a video as infringing; and
    • “Buried” some videos by preventing them from appearing on a “most popular videos” list. Slip op. at 29.

Both sides moved for summary judgment with respect to the “safe harbor,” which the court denied. With respect to the record companies, the court stated that it “is not prepared to hold that this automatically compels the conclusion that the service provider, through its employees, was aware of facts and circumstances that would make it objectively obvious to a reasonable person that these videos were infringing.” Slip op. at 30. As for Vimeo’s motion, the court stated that it “is nevertheless unprepared to hold as a matter of law that a service provider may disclaim knowledge of infringing material under any circumstances short of an employee’s awareness that the uploader has no legal defenses for his or her otherwise infringing materials.” Slip op. at 32-33 (footnote omitted).

What is your company’s policy and practice with respect to employees posting comments or otherwise affecting user-posted materials?  Is there an indication when the employee posts comments? See the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising,.” See the Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising,.”  16 C.F.R. Part 255.  Is there music that was recorded prior to February 15, 1972?

Sue Ross ( / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.