Labels Intensify Their War Against Vimeo…

He who lives by the DMCA, dies by the DMCA. And the latter may be the fate of Vimeo, the cleaner cousin of YouTube that never played the copyright game as slickly.

Which is partly why the major labels are intensifying their attack on Vimeo on that grounds of loose-and-fast DMCA interpretations, and asking a federal judge to make a final decision against Vimeo, right now.

capitol_v_vimeo_cover

The label group, led by Capitol Records (ie, UMG), has just filed paperwork demanding a summary judgment against Vimeo on the grounds that this is a company that knew, encouraged, and facilitated widespread infringement of musical copyright on a recurring basis.

Capitol v. Vimeo actually dates back to 2009, but was delayed pending guidance from a far larger legal battle between Viacom and YouTube (Vimeo, by the way, is owned by Barry Diller’s IAC/InterActiveCorp). Now, several issues related to what actually constitutes DMCA safe harbor have been established by the 2nd Appelate Court.  In summary, playing the DMCA game now goes far deeper than simply waiting for a Takedown Notice from the copyright owner.

Instead, networks and sites are expected to take action if they are aware of infringing content, and sneaky attempts to ‘remain willfully blind’ can amount to serious infractions.  Capitol asserts that Vimeo failed a list of newly-precedented safe harbor litmus tests, including:

(1) the site does not have actual (i.e., subjective) knowledge of specific infringing works;

(2) it does not have ‘red flag’ (i.e., objective) knowledge of specific infringing works;

(3) it is not ‘willfully blind’ to infringement;

(4) it does not have the right and ability to control infringing activity from which it receives a financial benefit (regardless of knowledge);

(5) it does not induce infringement; and

(6) it expeditiously removes infringing works after being provided a ‘takedown’ notice.

“Vimeo has actual and ‘red flag’ knowledge of infringing works on its system but refuses to remove them,” Capitol asserts in its filing.  “It has constructed a system to remain willfully blind to infringement… it induces users to infringe music copyrights; and it fails to communicate or properly implement a repeat infringer policy or expeditiously remove infringing works.”

“Thus, Vimeo is far from the ‘innocent’ service provider eligible for DMCA ‘immunity.'”

Dig a bit deeper, and the action calls for a far different DMCA than the ‘whack-a-mole’ approach of today.  “Confining the DMCA to a ‘notice and takedown’ statute places the burden entirely on the copyright owner and ignores the remaining safe harbor requirements.  That is not what the statute says, nor is it the construct reiterated in Viacom.”

 

“In fact, Congress made clear that copyright owners need never provide takedown notices, an often futile process.”

The full motion is here.

20 Responses

  1. Visitor
    Visitor

    “(1) the site does not have actual (i.e., subjective) knowledge of specific infringing works;

    2) it does not have ‘red flag’ (i.e., objective) knowledge of specific infringing works;

    (3) it is not ‘willfully blind’ to infringement;”

    Google could never sign this. Here is what YouTube suggests when I search for ‘Photoshop’:

    PHOTOSHOP CS6 FREE DOWNLOAD

    Here is what Google suggests when I search for ‘Photoshop’:

    PHOTOSHOP FREE DOWNLOAD

    Maybe labels (and other right owners) should intensify their war on Google instead. They are still head of the Piracy Industry.

    Reply
  2. joey
    joey

    Vimeo does actively disregard notices.
    As a Vimeo user I have told Vimeo staff about copyrighted material.
    Vimeo never, ever respond.
    Vimeo never inform the user who has voilated material to remove it.
    Vimeo never remove the video.
    It’s pretty clear to anyone that takes the time to look, or listen, Vimeois not interested in DCMA nor copyright.

    Reply
    • Visitor
      Visitor

      “Vimeo does actively disregard notices.
      As a Vimeo user I have told Vimeo staff about copyrighted material.”
      Have you sent legitimate take-down notices for material that you actually own?

      Reply
  3. Zac Shaw
    Zac Shaw

    If labels spent 1/10th of what they do on litigation to actually innovate new products and music technologies, they might actually have a shot at regaining control over people’s access to music. Actually, I take that back. Music fans and musicians alike are waking up to realize the label-based record business was based on exploitation and litigation. Patronage is vastly preferable to exploitation for most fans and musicians, and that’s the infrastructure we’re building to eschew the corrupt and consolidated industry elite. Labels will disappear — absorbed into the global, military-industrial corporations that show nothing but disregard for music’s true meaning and purpose — to bond us socially in shared experience. The whole record business has been artificially propped up by litigation and the continued perversion of copyright law to drive profit rather than the greater good. I see every DMCA takedown notice as the last potential wave from a drowning old man.

    Reply
  4. Versus
    Versus

    Good. They need to fined into non-existence and the proceeds distributed to copyright holders.
    DMCA is a joke. It’s too much work for rights holders; it doesn’t penalize the infringers; it does nothing to regain the lost income.

    – V

    Reply
    • Casey
      Casey

      That may happen, but it could bite copyright holders in the butt in the end. The website, being hosted in the US, falls under US jurisdiction. But as we have seen before, there is not much stopping the website from moving overseas, where it cannot be harmed. Or a clone popping up in a country outside the US. Then the battle was for nothing.

      Instead of trying sue these companies out of existence (in the US) it would be better if a more constructive approach was taken. One that would perhaps turn the websites policies around and make a website that actually followed the law. Making all these enemies is not the best idea long term, regardless of if it is justified.

      Reply
        • Casey
          Casey

          MegaUpload is still debatable. It has been shutdown, but the trials deciding the fate once and for all are going to take years if they ever happen at all. It is unfortunately looking like feds went in and tried to do things by laws they did not fully understand. Now they pay a price. MegaUpload could not only win and humiliate the federal government, but they could pop back up stronger than ever and become nearly untouchable. The feds screwed up, big time.

          Reply
  5. Harrison
    Harrison

    Vimeo continued encouraging copyright infringement of Video as well. Few monitored, nor cared, justifying infringement in the name of ‘cool’ artistic pursuit. It’s past due that this arrogance be confronted.

    Reply
  6. Fuzzgun
    Fuzzgun

    Anyone who thinks copyright will ever be abolished is totally high. There are major label and major publisher lobbyists in Washington making sure that will never happen, literally as we type. You think Atlantic will ever stop monetizing Zeppelin, or that Colimbia will consent to just let those Dylan dollars go? Never. Going. To. Happen. Lobbying dollars talk. Copyright Emancipationists keep dreaming.

    Reply
    • Visitor
      Visitor

      “Anyone who thinks copyright will ever be abolished is totally high. There are major label and major publisher lobbyists in Washington making sure that will never happen”
      Copyright is here to stay because Intellectual Property is one of the most central elements in modern global economy — not for the reasons you mention.

      Reply

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