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DMCA Safe Harbor Protects ISPs From Infringement Under State Copyright Laws: Second Circuit
Practical Law Legal Update w-002-6860 (Approx. 4 pages)
DMCA Safe Harbor Protects ISPs From Infringement Under State Copyright Laws: Second Circuit
by Practical Law Intellectual Property & Technology
| Published on 21 Jun 2016 • USA (National/Federal) |
In Capitol Records, LLC v. Vimeo, LLC, the US Court of Appeals for the Second Circuit vacated in relevant part the district court's partial summary judgment ruling that the Digital Millennium Copyright Act of 1998's (DMCA) safe harbor provisions did not protect internet service providers from infringement liability under state copyright laws applicable to sound recordings fixed before 1972.
On June 16, 2016, in Capitol Records, LLC v. Vimeo, LLC, the US Court of Appeals for the Second Circuit affirmed in part and vacated in part the US District Court for the Southern District of New York's partial summary judgment rulings on whether Vimeo, LLC was entitled to the Digital Millennium Copyright Act of 1998's (DMCA) safe harbor protections ( (2d. Cir. June 16, 2016)). The Second Circuit held in relevant part that the DMCA safe harbor did protect internet service providers from infringement liability under state copyright laws controlling rights in sound recordings fixed before 1972 (17 U.S. Code § 512(c)).
This case involves a suit brought by several record companies (collectively, plaintiffs), against Vimeo, an internet service provider that operates a website on which members post videos of their own creation, which are then accessible to the general public. Plaintiffs alleged that Vimeo was liable for copyright infringement because of 199 videos posted on the Vimeo website that included audio portions containing allegedly infringing musical recordings in which plaintiffs owned state law copyrights.
The district court, ruling on motions for partial summary judgment, held:
- For the videos that allegedly infringed pre-1972 sound recordings:
- Section 512(c) of the DMCA's safe harbor absolves a service provider only from copyright liability under the federal copyright statute; and
- the federal copyright statute does not apply to pre-1972 sound recordings, which are protected only by state copyright laws.
- For the videos that allegedly infringe post-1972 sound recordings, Vimeo's acts were covered by the DMCA's safe harbor provisions because it did not have actual or "red flag" knowledge of the infringement. The district court therefore:
- granted summary judgment to Vimeo as to 153 videos, mostly on the basis that Plaintiffs lacked evidence that Vimeo's employees had viewed them and rejected Plaintiffs' arguments that knowledge should be imputed to Vimeo by reason of its alleged willful blindness to infringement of sound recordings; and
- denied summary judgment for the remaining challenged videos, concluding that there was a question of material fact whether Vimeo had a subjective awareness of facts that would have made the infringement of the plaintiffs' recordings objectively obvious to a reasonable person (so-called “red flag” knowledge), which would make Vimeo ineligible for the protection of the safe harbor under the terms of Section 512(c).
The Second Circuit addressed three issues on interlocutory appeal:
- Whether the safe harbor of Section 512(c) applies to pre-1972 sound recordings.
- Whether evidence of some viewing by Vimeo employees of videos that played all or virtually all of “recognizable” copyrighted songs was sufficient to satisfy the standard of red flag knowledge, which would make Vimeo ineligible for the DMCA safe harbor.
- Whether plaintiffs had shown that Vimeo had a general policy of willful blindness to infringement of sound recordings, which would justify imputing to Vimeo knowledge of the specific infringements.
Concerning the pre-1972 sound recordings, the Second Circuit held that the safe harbor does protect internet service providers from infringement liability under state copyright laws, finding:
- The US Copyright Office's 2011 report, which stated that the safe harbor does not protect against liability for infringement of pre-1972 sound recordings, was based on a misreading of the DMCA and improper statutory construction.
- A literal and natural reading of the text of Section 512(c) leads to the conclusion that its use of the phrase “infringement of copyright” does include infringement of state copyright laws, and Congress did not qualify the phrase by adding, as it did in other circumstances, the words, “under this title.”
- Construing the safe harbor as not applying to infringement under state laws would defeat Congress's purpose of striking a compromise under which, in return for the obligation to take down infringing works promptly on receipt of the owner's notice of infringement, internet service providers would be relieved of:
- liability for user-posted infringements of which they were unaware; and
- the obligation to scour matter posted on their services to ensure against copyright infringement.
Accordingly, the court vacated the district court's grant of partial summary judgment to plaintiffs on that question.
Regarding the remaining issues, the Second Circuit:
- Held that under the standard set out in Viacom International, Inc. v. YouTube, Inc, some viewing by Vimeo's employee of a video that plays all or virtually all of a recognizable copyrighted song is not sufficient to establish the red flag knowledge that would disqualify the service provider from the benefits of the safe harbor (676 F.3d 19, 26 (2012)). The court accordingly remanded the issue of employee viewing for reconsideration.
- Affirmed the district court's ruling in Vimeo's favor that plaintiffs did not show a general policy of willful blindness disqualifying Vimeo from claiming protection of the safe harbor.