March 2014: Summary Judgment Victory for Vimeo on Copyright Claims and Certification for Appeal on Two Important DMCA Issues

Quinn Emanuel obtained another victory on behalf of Vimeo in its defense against a multitude of Digital Millennium Copyright Act (“DMCA”) claims by various record companies. The record companies brought claims on user-created videos hosted by Vimeo that contained copyrighted music allegedly in violation of the owners’ copyright. The United States District Court for the Southern District of New York granted Vimeo’s motion for summary judgment several months ago on 144 of 199 of the record companies’ DMCA claims, but recently decided Vimeo’s motion for reconsideration and for certification of questions for appellate review. The Court reversed itself, and awarded Vimeo summary judgment on 17 additional DMCA claims. In addition, the Southern District certified to the Second Circuit all of Vimeo’s questions on all remaining claims for which Vimeo had not previously won summary judgment or sought review, while refusing to certify any question presented by the record companies.

The Southern District initially denied Vimeo a summary judgment finding that it was entitled to safe harbor protection under the DMCA as to 17 videos. The Court had determined that, because Vimeo employees allegedly “interacted” with the videos containing copyrighted music, a reasonable juror could conclude “that Defendants were ‘aware of facts or circumstances from which infringing activity is apparent,’” red flag knowledge that precludes safe harbor protection from infringement suits. Reversing itself, the Court agreed with Vimeo as to fifteen videos that there was no evidence showing Vimeo employees actually viewed the videos, and Vimeo was thus entitled to summary judgment granting it safe harbor protection as to these videos. As for another two videos, the Court reversed its prior finding that the “infringing activity in each video was ‘‘objectively’ obvious to a reasonable person,’” because the copyrighted songs actually played in each video “for only a short time in the background … during the middle of the video and [were] otherwise a less significant aspect of the video.”

The Court then certified two questions posed by Vimeo for interlocutory appeal: (1) “[w]hether the DMCA’s safe harbor provisions are applicable to sounds recordings fixed prior to February 15, 1972,” and (2) “[w]hether … a service provider’s viewing of a user-generated video containing all or virtually all of a recognizable, copyrighted song may establish ‘facts or circumstances’ giving rise to ‘red flag’ knowledge of infringement.” As to the first question posed by Vimeo, the Court acknowledged “a substantial ground for difference of opinion” on the reach of the DMCA and noted that the “issue is a question of first impression in the Second Circuit.” Regarding the second question, the Court “recognize[d] that determining whether a defendant has ‘red flag’ knowledge of infringement is a difficult question that has important ramifications for service providers such as Vimeo,” underscoring that its prior decision “may lead service providers to be more aggressive in further investigating or even removing copyrighted content that they encounter.” The appeal before the Second Circuit on these issues will have a critical impact on the safe harbor protection afforded to internet service providers who rely on a strong DMCA in order to provide services to the public.