Employee’s interactions with infringing videos may disqualify VIMEO from DMCA hosting safe harbor

by Béatrice Martinet Farano

On 18 September 2013, the US District Court for the Southern District of New York granted in part and denies in part Vimeo’s summary judgment motion for safe harbor protection under the DMCA.

In this case, Capitol Records LLC and various other broadcasters brought a copyright infringement action against Vimeo, a well-known video-sharing website, for videos containing plaintiff’s copyrighted music.

The plaintiff argued that (1) Vimeo was not eligible under the DMCA safe harbor and that (2) even if it was eligible under this safe harbor, Vimeo could not claim the benefit of the safe harbor as (a) some the videos had been downloaded by Vimeo’s employees, rather than “stored at the direction of the users” and (b) Vimeo had knowledge of the infringing character of some of these videos as a result of its employees’ “interaction” with some of these videos.

Vimeo filed a motion for summary judgment arguing it was protected under the hosting safe harbor. The District Court granted in part and denied in part this motion.

  1. Eligibility under the DMCA hosting safe harbor

On the issue of Vimeo’s eligibility under the hosting safe harbor, the Court first ruled that Vimeo met the general requirement to be eligible under the hosting safe harbor.

Specifically, the Court held that;

(1) Vimeo was a “service provider” within the meaning of the DMCA. The Court confirmed the definition of service provider given in Viacom (see Newsletter No. 3/2012 p. 5) confirming that this term was defined to cover “more than mere electronic storage lockers”

(2) Vimeo had adopted and reasonably implemented a policy against repeat infringers. In this regard, the Court confirmed that this policy did not have to be perfect and that the presence of some videos posted by repeat infringers could not bar Vimeo from the benefit of the safe harbor

(3) Vimeo had not interfered with Standard Technical Measures (or TPM) used by copyright holders to monitor and protect their work. In this regard the Court pointed out that a privacy setting preventing copyright owners from collecting information needed to issue takedown notice could not be analyzed as a dispositive to circumvent DRM.

  1. Conditions to avoid liability under the DMCA safe harbor

The Court then examined whether Vimeo had met the requirement for safe harbor protection under the DMCA. In this regard, the Court analyzed the four specific conditions laid down by the DMCA and found that there were two specific triable issues:

(1) Storage at the Direction of the user

Here, the Plaintiff argued that Vimeo could not claim protection under the DMCA for 10 of the videos that had been downloaded by its employees, as the DMCA safe harbor was limited to third party content (stored by the service provider “at the direction of the user”). For the Court, this raised a triable question as to whether the employees who had uploaded these videos should be considered independent employees – in which case their acts could not be attributable to the company – or as acting on behalf of their company, making their company potentially liable for their acts.

(2) Knowledge or sufficient awareness

According to the plaintiff, another reason for making Vimeo liable for these videos was that Vimeo had necessarily knowledge of these videos as a result of Vimeo’s employees (i) liking, (ii) commenting, (iii) reviewing, (iv) placing on channels, (iv) white-listing or (v) “burring” of these videos.

The Court found that this “interaction” of Vimeo’s employees with some of the infringing videos raised another triable issue as to whether Vimeo acquired actual or “red flag” knowledge of the infringing content.

(3) Right and ability to control infringement and (4) lack of benefit from it

On the other hand, the Court considered that there was no triable issue of fact that Vimeo had neither the right and ability to control infringement nor that it benefited from it.

In this regard, the Court stressed that the right and ability to control infringement meant something more than the mere ability to remove or block infringing content and that it should amount to a substantial influence over the infringing content through the use of a monitoring program or inducement of infringement, neither of which was present in this specific case.

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