Lack of Evidence That Vimeo Saw Uploads Warrants Summary Judgment on Second Look

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By Amy E. Bivins  

Jan. 3 --Video-sharing website operator Vimeo LLC is entitled to summary judgment against copyright infringement claims involving user uploads that employees did not view, the U.S. District Court for the Southern District of New York held Dec. 31, granting in part the site's motion for reconsideration (Capitol Records, LLC v. Vimeo, LLC, S.D.N.Y., No. 1:09-cv-10101-RA, 12/31/13).

The court held Sept. 18 that a jury would need to decide whether Vimeo had red flag knowledge of infringement with respect to videos uploaded by premium members (184 PTD, 9/23/13).

The court based that decision on its conclusion that Vimeo employees had interacted with the videos and thus could have had red flag knowledge of infringement. The court changed its stance on those videos in this ruling.

The court also Sept. 18 granted Vimeo's motion for summary judgment as to videos uploaded by the majority of Vimeo users on the grounds that employees never viewed the videos.

Record Demands Dismissal of Additional Claims

Judge Ronnie Abrams granted Vimeo's motion for reconsideration in part in this opinion. The court held that where Capital Records LLC presented no evidence that Vimeo employees viewed the uploads by premium members the site was entitled to summary judgment based on its immunity to the claims under the Digital Millennium Copyright Act's safe harbor for online intermediaries, 17 U.S.C. §512(c)(1).

The court however rejected Vimeo's assertion that it was also entitled to summary judgment with respect to uploads that employees indisputably viewed. Many of the videos included full-length copyrighted songs, but Vimeo argued that it should be protected by the DMCA because its employees should not be required to make legal judgments about whether the videos might be protected under fair use principles.

The court found that, with respect to 18 out of those 20 videos, a reasonable juror could find--though would not have to find--that Vimeo had red flag knowledge of infringement. Vimeo was entitled to summary judgment under that theory for only two videos, where copyrighted songs played for only a short time in the background and were not a significant aspect of the videos.

Interlocutory Appeal on DMCA Questions

The court granted Vimeo's request to certify for interlocutory appeal two questions related to the DMCA safe harbor:

• Whether the DMCA's safe harbor provisions are applicable to sound recordings fixed prior to Feb. 15, 2972; and

• Whether, under Viacom Int'l Inc. v. YouTube Inc., 676 F.3d 19, 103 U.S.P.Q.2d 1283 (2d Cir. 2012) (66 PTD, 4/6/12), 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.


Capital Records LLC was represented by Christine Lepera (New York), Marc E. Mayer (Los Angeles), Jeffrey M. Movit (New York), and Russell J. Frackman (Los Angeles), Mitchell Silberberg & Knupp LLP.

Vimeo LLC was represented by Robert Lloyd Raskopf (New York), Jessica Anne Rose (New York), Rachel Marie Kassabian (Redwood Shores, Calif.), and Todd Steven Anten (New York) Quinn Emanuel; and Michael A. Cheah, IAC Interactive Corp.


To contact the reporter on this story: Amy E. Bivins in Washington at

To contact the editor responsible for this story: Thomas O'Toole at

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