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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It’s All About the Chorus in Usher and Bieber Copyright Infringement Case

Musician Devin Copeland and his songwriting partner, Mareio Overton, wrote a song entitled “Somebody to Love” in 2008 and registered the copyright for the song later that year.  Usher Raymond IV and his manager, Jonetta Patton, listened to Copeland’s album, including “Somebody to Love,” in late 2009.  During a phone conversation with Copeland, Patton expressed interest in Copeland’s music and having him join Usher on tour.  Nothing came of that.  A few months later, Usher recorded and posted on YouTube a song entitled “Somebody to Love.”  Usher’s protégé, Justin Bieber, also recorded a song entitled “Somebody to Love,” releasing his version in the spring of 2010. 

Copeland sued Usher and Bieber for copyright infringement, alleging access to Copeland’s work and a striking resemblance to Copeland’s work.  Bieber and Usher filed a Rule 12(b)(6) motion to dismiss Copeland’s complaint, arguing that no reasonable jury could find that the Copeland song and the Usher and Bieber songs were substantially similar.  The district court agreed with Usher and Bieber and dismissed Copeland’s complaint.  The Fourth Circuit Court of Appeals vacated the district court’s ruling and remanded the case.

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YouTube Protected by DMCA Safe Harbor, Viacom Suit Dismissed on Remand

This post follows up on my post entitled YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit.  Viacom and other plaintiffs who are content owners sued YouTube for copyright infringement.  The district court granted YouTube’s motion for summary judgment, ruling that YouTube was protected by the DMCA §512(c) safe harbor.  On appeal, the Second Circuit ruled in YouTube’s favor on some issues, but remanded the case to the district court to address four specific issues.  On remand, the district court ruled in YouTube’s favor on all four of those issues, granted YouTube’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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Veoh Protected Against UMG Copyright Infringement Claims by DMCA Safe Harbor

Veoh Networks operates a website that allows users to upload and share video content over the Internet.  Universal Music Group (UMG) is a major recorded music and publishing company and also produces music videos.  UMG sued Veoh for direct and secondary copyright infringement, alleging that Veoh’s service allows users to download unauthorized copies of songs for which UMG owns the copyright. 

I previously blogged about this case in Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit.  Last week, the Ninth Circuit withdrew its opinion filed December 20, 2011 and filed a superseding opinion.  The Ninth Circuit again upheld the district court ruling that Veoh’s services were protected by a Digital Millennium Copyright Act (DMCA) safe harbor.

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YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit

The Second Circuit issued its opinion in Viacom v. YouTube last week.  This case is similar to UMG v. Shelter Capital Partners, LLC in that it addresses issues arising out of applying the Digital Millennium Copyright Act (DMCA) safe harbor provisions to a service provider that permits users to upload videos to its website and view video clips uploaded by others without charge.  See my post Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit for details on UMG v. Shelter Capital.  The Second Circuit agreed with some, but not all, of the Ninth Circuit’s DMCA safe harbor analysis.

The plaintiffs in Viacom v. YouTube appealed the district court’s ruling granting YouTube’s motion for summary judgment on the grounds that YouTube was protected by the DMCA §512(c) safe harbor and denying plaintiffs’ cross motions for partial summary judgment.  This case is actually comprised of related actions in which the plaintiffs, including Viacom, film studios, television networks, music producers, sports leagues and class action plaintiffs, are copyright holders who sued YouTube for copyright infringement based on the public performance, display, and reproduction of video clips that appeared on the YouTube website between 2005 and 2008.  The specific video clips at issue are 63,497 clips identified by Viacom and 13,500 clips identified by the class action plaintiffs.  The Second Circuit refers to the clips at issue as “clips-in-suit.”

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Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit

Facts Veoh Networks operates a website that allows users to upload and share video content over the Internet.  Universal Music Group (UMG) is a major recorded music and publishing company and also produces music videos.  UMG filed suit against Veoh (pdf) for direct and secondary copyright infringement. 

Veoh asserted Digital Millennium Copyright Act (DMCA) safe harbor protection as an affirmative defense.  UMG and Veoh both filed motions for summary judgment.  The district court ruled in Veoh’s favor, holding that Veoh met all of the requirements and was entitled to DMCA safe harbor protection.  The Ninth Circuit Court of Appeals upheld the district court’s safe harbor rulings.  UMG argued before the Ninth Circuit that Veoh failed to meet three of the DMCA’s requirements, as discussed below. 

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