Disabling the “Red Flag” Doctrine: Missed Opportunity to Establish Reasonable Precedent in Capitol Records v. Vimeo

On Wednesday September 19th, Judge Ronnie Abrams issued his opinion on opposing summary judgment motions in Capitol Records v. Vimeo. Capitol Records sued online video platform Vimeo for copyright infringement, alleging that 199 videos hosted on its website contained music to which they owned the rights. Vimeo did not deny that they hosted the content, which contained copyrighted music from artists such as The Beatles, Daft Punk and Beyonce. Instead Vimeo alleged that they did not know they were hosting the content, which entitled them to shelter under the Digital Millennium Copyright Act’s “safe harbor” provisions. 

Under the provisions, an online service provider is insulated from most liability for copyright infringement if they do not have actual knowledge or “red flag” knowledge that the files are infringing. “Red flag” knowledge, as explained in Viacom International, Inc. v. YouTube. Inc., is found when a provider is “subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person”.

Arguing that Vimeo had sufficient notice to constitute “red flag” knowledge, and was thus ineligible for the protection of the DMCA, Capitol Records pointed to a number of interactions Vimeo employees had with 55 of the videos at issue. These interactions included disabling a user’s ability to flag specific videos as “infringing”, commenting and liking videos, and “burying” videos so they would not appear on the front page of the website.  The videos in question were easily discernable as copyrighted material and included songs that the court characterized as “legendary”, such as “All You Need is Love” by the Beatles.

In evaluating the evidence before him, Judge Abrams justifiably dismissed 144 of the counts, as no evidence was presented regarding those videos. Yet, the court did not rule that, as a matter of law, the videos to which the evidence did relate to constituted “red flag” knowledge. Instead, Judge Abrams found triable issues of fact as to whether the employee interactions lead Vimeo to have “red flag” knowledge of the infringing content.

By sending these issues to a jury, Judge Abrams failed to establish a reasonable precedent regarding “red flag” knowledge, further eroding the “red flag” standard. Actual employee interaction with the infringing material, especially where the employees make it harder for copyright owners to issue takedown notices, should be sufficient to constitute infringement which is ‘objectively’ obvious to a reasonable person.

Congress intended the DMCA provision to trigger a duty to investigate further when the possibility of infringement is apparent. Instead, the way courts have read it turns the DMCA into little more than a notice-and-takedown regime that benefits online service providers while placing more of a burden on creators.  

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