![]() ![]() And bad faith generally “may be inferred from the actual or constructive knowledge of the ” property right…. So it dismisses some, and throws some others into the other pile for when the case moves forward.Īs to each of those claims, Vimeo apparently concedes that Plaintiffs have alleged red-flag knowledge… The Court at this stage must accept those allegations as true and draw all reasonable inferences in Plaintiffs’ favor…. ![]() Going way back to earlier in the case, there were still claims on post-1972 sound recordings over the possibility of “red flag knowledge” which had been sitting around, and here the court finds that some of the pre-1972 songs could also have red flag knowledge. That’s mostly good news for Vimeo, which gets a bunch of claims dismissed. Furthermore, it points out that if there is no infringement of the works under the DMCA then Vimeo hasn’t misappropriated any works and “without misappropriation, Plaintiffs’ unfair-competition claims fail.” The record labels try to get around this by arguing unfair competition is totally different, but the court rightly recognizes that if true, this would allow any copyright holder to completely get around the DMCA’s safe harbors by throwing an unfair competition claim in. Whenever copyright infringement is a necessary element of a claim, liability for that claim amounts to liability “for infringement of copyright” under the DMCA because no liability could be imposed absent the relevant copyright infringement. But it also covers other claims for which liability requires proof of copyright infringement. In the same way that the statute does not distinguish between federal and state copyright-infringement claims… it does not distinguish between copyright-infringement claims and other types of claims that result in “liab… for infringement of copyright.” Instead, the safe harbor precludes liability for a particular type of conduct–namely, “infringement of copyright.” This reading plainly encompasses copyright-infringement claims, because “ne who has been found liable for infringement of copyright under state laws has indisputably been found ‘liable for infringement of copyright.”…. The question here is whether it can also apply to non-copyright claims that are founded on copyright infringement. It says that now that it’s been told by the appeals court that the DMCA’s safe harbors do apply to pre-1972 works, it believes that the unfair competition claims are really based on the copyright claims, and thus Vimeo is protected. And the latest ruling grants… some of them. The Supreme Court was petitioned, but declined to hear the case.Īnd thus, the case goes back down to the district court again, with Vimeo now trying to get other claims (such as “unfair competition”) dismissed under the DMCA’s safe harbor provisions. ![]() So that got appealed and in 2016, the 2nd Circuit said of course those works are covered by the DMCA’s safe harbors. If you don’t recall, pre-1972 sound recordings did not get copyright protection (their compositions did, but not their recordings). First, the court said that Vimeo may be liable for so-called “red flag” infringement (i.e., knowing that something was absolutely infringing and doing nothing about it) but also saying that the DMCA safe harbors did not apply to songs recorded prior to February 15th, 1972. The case has taken many, many, many twists and turns.īack in 2013, the record labels got a big win on two points. Perhaps the most famous was one done by the staff of Vimeo itself. The case, which was first filed in 2009, initially focused on Vimeo’s promotion of so-called “lipdubs.” Vimeo is a much smaller competitor to YouTube for hosting videos, but in the 2007 to 2009 timeframe, got some attention for hosting these “lipdubs” of people singing along to famous songs. The case involves record labels suing web hosting site Vimeo for copyright infringement. I’ll admit that I’d forgotten this case was still going on, but after nearly a decade, there it is. Tue, Apr 10th 2018 10:40am - Mike Masnick ![]()
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