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Vimeo wins appeal on pre-1972 music in uploaded videos

vimeo logo VOne pre-1972 copyright case that has escaped broad awareness is Capital Records vs. Vimeo, the high-end video platform. Vimeo has just won an appeal that absolves it from treating pre-1972 music content differently from post-1972 music content.

Vimeo operates a content distribution model similar to YouTube, in which users may upload videos, and Vimeo is protected from copyright infringement charges with the Safe Harbor clause of the Digital Millennium Copyright Act (DMCA), enacted in 1998.

The DMCA, and Safe Harbor, are controversial on their own. In this case, the DMCA and Safe Harbor intersect the pre-1972 copyright controversy. Music produced before 1972 is weirdly not protected by U.S. federal copyright law. This loophole has enabled music services to play pre-1972 oldies without royalty obligation. But artists and labels have launched coordinated attacks on this loophole by suing in state courts, arguing for state protection. (See our coverage here.)

The Original Ruling

In the Capital vs. Vimeo case in a district court of New York, the label plaintiff attempted to remove Safe Harbor protection for pre-1972 music included in Vimeo uploads. The argument was that Safe Harbor is a federal regulation, and pre-1972 music is not included in federal copyright. Here is how the U.S. Court of Appeals for the Second Circuit framed the original decision:

“The [district] court granted partial summary judgment to Plaintiffs as to 12 videos containing pre-1972 recordings, ruling that § 512(c)’s safe harbor was not 13 applicable to sound recordings fixed prior to 1972, because these were protected by 14 state, rather than federal, copyright laws.”

The New Ruling

And that is the original decision which the appeals court vacated (struck down), with this statement: “On the first question—whether the safe harbor protects service providers from infringement liability under state copyright laws—we conclude it does and accordingly vacate the district court’s grant of partial summary judgment to Plaintiffs on this question.” That means that infringement of pre-1972 music on Vimeo, which Capital Records wants to be covered by state law, will not be. Accordingly, Vimeo may use Safe Harbor protection to handle infringement complaints of pre-1972 music. That usually means that if the distributor (Vimeo) acts on a complaint (usually by removing the content from the platform) within a specified time, the platform is not liable for copyright infringement damages.

This case differs from most of the pre-1972 legal coverage here, in that Vimeo is a user-generated content site. Most of the cases brought by rights-holders of pre-1972 music target music services and webcasters which select and curate their own content. In October, Pandora made headlines with a pre-1972 settlement with the RIAA.

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Brad Hill

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