ISPs Receive DMCA Safe Harbor Protection for Pre-1972 Sound Recordings

Capitol Records and other sound recording copyright owners sued Vimeo for copyright infringement, alleging Digital Millennium Copyright Act (DMCA) violations.  Vimeo is an Internet service provider that allows members to post videos the members create, which the general public can view.  The copyright owners alleged that some of the member-created videos included copyrighted content without authorization from the copyright owners.  The interlocutory appeal from the district court presented three issues to the Second Circuit Court of Appeals.

(i) whether the DMCA §512(c) safe harbor applies to pre-1972 sound recordings.  This is a different issue than copyright owners’ rights under state copyright law for pre-1972 sound recordings.

(ii) whether evidence of some viewing by Vimeo employees of videos that played all or virtually all of ‘recognizable’ copyrighted songs was sufficient to satisfy the standard of red flag knowledge, which would make Vimeo ineligible for the DMCA safe harbor; and

(iii) whether Plaintiffs have shown that Vimeo had a general policy of willful blindness to infringement of sound recordings, which would justify imputing to Vimeo knowledge of the specific infringements.

The Second Circuit affirmed the district court’s rulings in part and vacated in part.  The Second Circuit ruled that the DMCA safe harbor, a federal statute, protects service providers from infringement liability for pre-1972 sound recordings, which are covered by state law.  Secondly, the Second Circuit ruled that some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyrighted song does not disqualify the service provider from safe harbor protection.  Thirdly, the Second Circuit ruled that the copyright owners did not show a policy of willful blindness by Vimeo that would have disqualified Vimeo from safe harbor protection.

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De Minimis Horn Hits Blow Away Copyright Infringement Claim

Pop star Madonna and Shep Pettibone recorded and released the mega-hit dance song Vogue in the early 1990s.  Pettibone recorded the song Love Break in the early 1980s.  VMG Salsoul LLC claims ownership of both the sound recording and musical composition copyrights for Love Break.  VMG sued Madonna, Pettibone, and others, for copyright infringement, claiming that Pettibone “sampled” (physically copied the actual sounds) of horn hits (horn chords) from Love Break in creating Vogue.

Ruling that the horn hits were not original under copyright law and, alternatively, that any horn hit sampling was de minimis, the district court granted summary judgment in favor of Madonna and Pettibone.  The Ninth Circuit held that the de minimis exception to copyright infringement actions applies to all copyright infringement actions, including sound recordings.  In a previous case, Newton v. Diamond, the Ninth Circuit held that the de minimis exception applied to musical composition infringement claims, but did not decide the sound recording question, since that question was not part of that case.  The Ninth Circuit reversed the district court’s award of attorney’s fees to the defendants for abuse of discretion.

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Known Copyright Registration Inaccuracies Can Hurt Later

I’m going to ignore blog post best practices and start out with a statute:

(b)

(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—

(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.

(2) In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.

17 U.S.C. §412(b).

Palmer/Kane sued Rosen Book Works for copyright infringement.  The district court granted Rosen’s motion for the district court to request the Copyright Office to advise the court on whether the Copyright Office would have refused registration if it knew that certain information included in the registration application was inaccurate.  Rosen argued that Palmer/Kane’s predecessor knowingly misrepresented to the Copyright Office that the photographs it applied to register as an unpublished collection had not been previously published.

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