Internet Lawyer Blog
Now, that we know that Content ID exists, shouldn’t all online companies be held to that standard? As it currently stands, the law posits “not quite.” So, what standards are they held to? Surely, online content providers must take some reasonable measure to protect the copyrights of others. If not, certainly, a company must have some knowledge of copyright laws? At least enough to know that uploading the original works of third parties without consent constitutes copyright infringement. Or, at least the company must have knowledgeable employees who appreciate the Digital Millennium Copyright Act’s guidelines?
What is required under the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act (DMCA) comes with a safe harbor provision that protects online service providers from liability. To avoid liability for any copyright infringement, online service providers are required to take down content as soon as they have knowledge of the alleged infringing activity. This last part is important, as it effectively gives purpose to the safe harbor. If an entity can be charged for the violation of its users without any actual knowledge, then it has the potential to stymie the general purpose of the internet. However, what is not clear is how a company should gain knowledge of the allegedly infringing materials, and that was the heart of the dispute between Capitol Records, LLC and Vimeo.
What was the lawsuit about?
In Capital Records, LLC v. Vimeo, a lawsuit arose regarding the business practices of Vimeo, specifically over videos that had included pre-1972 recordings (the status of pre-1972 recordings is currently up for debate with contradicting rulings in multiple circuits). As such, Capitol Records attempted to hold Vimeo liable for copyright infringement, due to multiple factors such as emails between officials within Vimeo who appeared to give a poor impression of the other side’s claims. However, this wasn’t enough to find that Vimeo was knowledgeable about the infringement according to the Second Circuit. The court acknowledged that confirming the validity of copyrighted material is not an easy task. Instead, it looked at the behavior of the employees who watched videos and held them to the standard of a reasonable person, and found that generally, a reasonable person would not be able to determine infringing activity. This was explained under a sort of “red flag” as in such an obvious infringement that any lay person could point it out. Yet, the court determined with online videos at least, it would be a narrow category. Even given that, all the facts, including the emails from Vimeo, seemed to push towards an unclear finding of knowledge, due to uncertainty in how much of the videos Vimeo staff watched, if they recognized the music, if they were trained in copyright laws, to show that Vimeo would be liable for the infringements.
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