The “safe harbor” provision of the Digital Millennium Copyright Act (DMCA) – section 512(c) – is probably the most well known part of it. In short, it says that as long as websites take certain measures, they won’t be held liable for any copyright infringement by their users. For example, they have to comply with takedown notices from legitimate copyright holders, and they can’t have “red flag” knowledge of infringement.

In 2009, several major record labels, including Capitol Records, Virgin Records and EMI, sued video-sharing site Vimeo for vicarious, direct and contributory copyright infringement, claiming that Vimeo’s employees had knowledge of user infringement on 199 videos. Vimeo argued that it met the requirements of “safe harbor” and wasn’t liable. (It’s important to note that at the time, Viacom v. YouTube – a case that was also over the “safe harbor” provisions – was before the court, and the Vimeo case was stayed pending the decision, which came down in 2013.) The district court granted partial summary judgment to the record labels regarding videos that were from before 1972 because they were protected by state laws and not federal laws, granted summary judgment in favor of Vimeo for post-1972 videos that Vimeo employees didn’t see, and denied summary judgment for both parties on whether Vimeo had “red flag” knowledge of infringement on videos employees saw that featured “recognizable” copyrighted materials. The court also rejected the record labels’ argument that Vimeo had willful blindness toward infringement.

Now the United States Court of Appeals for the Second Circuit has ruled that “safe harbor” applies to music from before 1972, and the fact that Vimeo’s employees saw videos that had “recognizable” copyrighted sound recordings is not enough evidence of “red flag” knowledge.

Judge Leval, who wrote the opinion, said that “a literal and natural reading” of 512(c) makes it obvious that the phrase “infringement of copyright” has to include infringement under state laws because “one who has been found liable for infringement of copyright under state laws has indisputably been found liable for ‘infringement of copyright.’” He added that Congress did not qualify “infringement of copyright” by saying “under this title,” which is what was written in other sections of the statute. Furthermore, Leval said that interpreting the statute as the district court had meant that “service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws.”

Even more important than the inclusion of the pre-1972 sound recordings in “safe harbor” the Court clarified what counts as “red flag” knowledge of infringement, a standard that came out of Viacom. The Second Circuit ruled in favor of YouTube in that case, and stated that “red flag” knowledge meant “the service provider must have actually known facts that would make the specific infringement claimed objectively obvious to a reasonable person.” It wasn’t enough that Vimeo employees had seen the copyrighted videos. The Court said that the burden shifted to the plaintiffs to prove that a website should be barred from receiving DMCA protections once “safe harbor” was raised as a defense and the defendants had established eligibility. The Court concluded this because viewing of the videos could’ve been brief or related to some other job function, such as resolving technical issues or conducting subject matter classification. The Court also questioned whether an ordinary person without musical knowledge would “recognize” a recording as copyrighted, and whether Vimeo’s employees were equipped to conduct fair use analyses. It determined that this was unlikely.

The Court then briefly addressed the issue of willful blindness and agreed with the district court’s finding on the matter. Even though Vimeo chose to monitor only certain aspects of the videos posted to the site, it did not lose the protection under “safe harbor” because it had no obligation to actively monitor for infringement in the first place. Also, the likelihood of infringement occurring on the site did not raise a duty to investigate instances of it. Finally, the court said that evidence of Vimeo employees’ inappropriate sporadic encouragement of users to post infringing material did not prove a general policy at the company.

The ruling further solidifies the protections granted under the DMCA to websites with user-generated content.

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