On Tuesday, the U.S. Court of Appeals for the Second Circuit issued an opinion in EMI/Capitol Records’ copyright infringement suit against Vimeo that is being touted by as a victory by the video hosting site.
“Today’s ruling by the Second Circuit court is a significant win for not just Vimeo, but all online platforms that empower creators to share content with the world,” said Michael Cheah, general counsel for Vimeo, in a statement. “The court rightly preserved the balance struck by the DMCA [Digital Millennium Copyright Act] in protecting rights holders and service providers, and we are very pleased with the decision.”
In EMI’s lawsuit, filed in 2009, it contended that Vimeo was “a commercial, for-profit venture that has built a business by reproducing, adapting, performing, and distributing works that it knows contain plaintiff’s copyrighted recordings, and then knowingly profiting from the draw created by making these works available for free to millions of its users.”
In the decision released today, the court ruled that a website employee’s mere viewing of a video with copyright-protected music is insufficient to confer “red flag” knowledge of infringement, and mere suspicion of infringement does not require a service provider to inquire further about whether infringement is taking place on its website. The court also that ruled that state-law protected sound recordings before 1972 are covered by the DMCA, even though they are not protected by the federal copyright law.
But the case is not over. The Second Circuit remanded the case back to the lower court for further proceedings.
Vimeo representatives declined to make additional comment, citing the potential for further litigation. Representatives from EMI did not respond to requests for comment.
Enacted in 1998, the DMCA protects online hosts from liability for copyright infringement by user-generated content if they remove it in a timely manner when the request is made by the IP owner.
The EMI vs. Vimeo lawsuit is one of several that have sprung from gray areas created by another law, the Copyright Act of 1972.
In a 2015 interview with the author, attorney Daniel Petrocelli, who has represented SiriusXM in lawsuits brought by the band The Turtles (“Happy Together”) and the major record labels, explained the genesis of the legal conflict.
“In the early ’70s, the record companies said they wanted copyright protection not just for the music on these records, but for the records themselves,” Petrocelli said. “Because it had always been the case that only the underlying music was protected by federal copyright law, not the actual master recordings. They wanted copyright protection for the master recordings so that people could not bootleg them, because that technology had started to come of age.”
The record companies lobbied congress to pass the Copyright Act of 1972, which made sound recordings going forward protected under federal copyright law. Since it was not retroactive, the record companies have relied on the state courts and legislatures to protect their copyrights for pre-1972 recordings.