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Capitol v Vimeo case back in court yet again

By | Published on Tuesday 1 June 2021


The legal battle between Capitol Records and Vimeo is somehow still ongoing. And last week there was another ruling as part of the music industry’s so far unsuccessful attempt to hold the video-sharing site liable for unlicensed music that appeared in videos uploaded to its platform.

The Capitol label – then still part of EMI – first sued Vimeo all the way back in 2009. The case was a test of the copyright safe harbour, of course, which says that internet companies cannot be held liable for the copyright infringement of their users providing they are unaware of the infringement, and that they have systems in place via which copyright owners can get infringing content removed.

Various side debates have been had as the case has slowly worked its way through the system, including whether the copyright safe harbour in federal US law even applies to sound recordings released prior to 1972 that are protected by state-level copyright law. It does. The labels then had a go at suggesting that Vimeo, by hosting videos with infringing music in them, had violate unfair competition rules under New York state law. They had not.

But the core debate, really, has been whether Vimeo had so called “red flag awareness” that videos on its platform contained unlicensed music, meaning it had an obligation to act in order to retain its safe harbour protection.

When the case reached the Second Circuit appeals court, it mainly ruled that, even though certain individual Vimeo employees may have known there were videos containing other people’s music on the company’s platform, that in itself didn’t constitute red flag awareness. Because the employees wouldn’t necessarily know whether the music had been licensed, or if the use of the music in the video constituted ‘fair use’.

However, Capitol went back to the district court saying it had additional evidence that Vimeo’s employees knew that videos on its platform contained music in a way that infringed copyright. However, according to Law360, last week the judge there ruled that the label hadn’t cleared the “high burden” imposed by the Second Circuit to prove that there was any red flag awareness.

There is one element of the case still left unresolved, though. That relates to 26 infringing videos uploaded to the Vimeo by its own employees. It is still to be decided whether those employees uploaded said videos as agents of Vimeo – in which case the company would lose safe harbour protection – or as private users of the service – in which case it would not.

While this particular Vimeo dispute is now more than a decade old, the video site is also facing some brand new litigation in this domain. Last month the Italian record industry announced it was suing the video-sharing site for failing to meet its obligations in order to benefit from the European copyright safe harbour.