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2nd Cir. Rules in Vimeo's Favor; Good News for ISPs

By Jonathan R. Tung, Esq. on June 21, 2016 | Last updated on March 21, 2019

The Second Circuit ruled in favor of Hi-Def video upload service Vimeo over allegations that the latter ignored red flags when its employees heard popular songs on the Vimeo's website. At the same time, it also affirmed the broad safe-harbor protections afforded under the DMCA, regardless of publication date of the copyrighted material.

It's a decision that made the EFF giddy with delight. It makes sense as the digital freedom group co-wrote an amicus in the case.

Vimeo found itself on the receiving end of a lawsuit in New York by major labels which accused Vimeo of being complicit in major copyright infringements by users of its online service. In recent years, Vimeo has become a prominent indie-video platform and many users often play "recognizable songs" in some of their videos.


The DMCA, both the shield and sword of online copyright holders and users, was passed in the 90s to give ISPs some protections from monetary liabilities based on the supposedly infringing acts of their users.

Opinions as to the Act's proper use is split among the circuits, but the lower district court in the Vimeo case relied on a State of New York case that interpreted the Act not to apply to recordings that were made pre-1972. Based on that ruling, the district court found in partial favor of Capital Records.

But the circuit's reversal is a major victory for ISPs on many legal issues. Let's briefly cover what the court said.

Circuit Reversal Re DMCA Safe Harbors and Pre-1972 Recordings

The plaintiff-labels wanted to push the notion that DMCA safe harbors don't apply to 1972 recordings because such recordings are really subject to state copyright laws and not federal protections. But the Second Circuit rejected this as contravening congressional purpose in enacting the DMCA.

Re "Recognizable" Videos and Red Flags

The Second Circuit employed a reasonable person standard as applied to regular people, not those with experience in copyright law. It also pointed out that the responsibility of claiming copyright protection is on the holder of the copyright, not on the ISP.

Willful Blindness

Finally, the court found that Vimeo was under no duty to investigate its video content for infringement of copyrights -- a very important decision. It found that such a duty would place a very significant burden on small companies and non-commercial hosts, thus stifling creativity and innovation. It generally found that since the company had no duty, it could not have been "willfully blind" in carrying out its duties.

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