The long-running fight over who is responsible for removing copyrighted content on video sites took a new twist as a New York federal judge refused to throw out a case against Vimeo, a popular site that lets users share clips.
In a ruling this week, US District Judge Ronnie Abrams held that so-called “safe harbor” laws — which can help internet sites avoid liability for the actions of their uses — may not shield Vimeo since its employees may have known that users were uploading infringing works by the likes of the Beatles and Jay-Z.
Vimeo had asked that the judge throw out the copyright case, which was filed by EMI and other major record labels, citing a recent landmark decision that said YouTube was not responsible for thousands of unauthorized videos posted during the site’s early days.
The Vimeo case, like the YouTube one, turns in large part on what content owners have to do to show “red flag” knowledge — a situation where a reasonable person would conclude that a website knew about a case of copyright infringement but chose to ignore it.
In the bigger picture, the Vimeo and YouTube cases are part of a long-running attempt by the entertainment industry to bend copyright law so that websites are required to take an active role in patrolling for piracy. Under the current law, which is intended to protect copyright holders without smothering the internet economy, sites are not responsible for their users so long as they respond to takedown requests — and are not complicit in the infringement.
In order to preserve their safe harbors, sites must also show that they don’t “control” the content that appears. In the Vimeo case, the music industry argued that the site’s monitoring system, under which employees sometimes promoted or “liked” pieces of content, meant that Vimeo had an active role in controlling the content.
The judge rejected that concept, and said a monitoring system — even one in which a site’s employees could create a “Staff Picks” list or comment on videos — did not mean the site forfeited its safe harbor.
The judge did, however, say the court was “troubled” by “disconcerting” remarks from Vimeo employees, such as telling a user “don’t ask, don’t tell 😉 ” and proposing to write “FUCK EMI” under a video. The key part of the ruling, however, said such remarks did not mean that Vimeo had knowledge about the specific videos that are at issue in the case.
As a result, the case will now look more closely at 55 specific videos in which Vimeo might have had actual or red flag knowledge; the court threw out 144 copyright claims related to other videos on the grounds Vimeo was covered by the safe harbor rules in these cases.
In the bigger picture, the ruling does not do much to shift the existing safe harbor rules which were affirmed in the YouTube case. The court also took care to say that Vimeo was not akin to sites like Grokster, which lost their safe harbor protection because they encourage users to infringe.
You can read the ruling, which contains a soup-to-nuts explanation of safe harbors, for yourself below (I’ve underlined some key passages). And if you can’t get enough of this stuff, a primer on YouTube and safe harbors is here.
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