Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (S.D.N.Y. filed Sep. 29, 2014) [Doc. 629].
Defendant moved for judgment as a matter of law, or alternatively a new trial, and for remittur following a $48,061,073 jury verdict in favor of plaintiffs, who consisted of record labels and publishers who had filed copyright and unfair competition claims alleging that defendant and MP3Tunes made infringing copies of copyright songs and cover art. The motion was denied in part, and granted in part. Specifically, defendant's motion for judgment as a matter of law was granted as to plaintiffs' claims of (1) public display rights in cover art, and (2) copyright infringement under "red flag" knowledge and willful blindness theories (except for certain works sideloaded and which the source domain's URL was obviously infringing and viewed by a company executive). Further, defendant's motion for a new trial on punitive damages was granted unless plaintiffs elected to remit the jury's punitive damage award to $750,000.
Showing posts with label Red Flag Knowledge. Show all posts
Showing posts with label Red Flag Knowledge. Show all posts
October 11, 2014
January 9, 2014
Vimeo Decision Modified; Leave To Appeal Granted
Capitol Records, LLC v. Vimeo, LLC, 2013 ILRC 3345, No. 09-cv-10101 (S.D.N.Y. Dec. 31, 2013).
Upon further review of the record, the Court agreed with defendants that Vimeo is entitled to summary judgment with respect to five videos for which the only evidence of employee interaction was that the user's account had been "whitelisted." "It is simply unrealistic to infer that a Vimeo employee watched" those videos. Also upon further review, the Court found that for two videos, the infringing nature of the videos was not objectively "obvious" and therefore Defendants did not have "red flag" knowledge of the videos' infringing content. However, the Court found that 18 of the videos still should go to a jury.
The Court granted Plaintiff's motion to amend the complaint to add additional videos, including both pre- and post- 1972 sound recordings.
Lastly, the Court granted Vimeo's motion to certify two questions for interlocutory appeal: (1) Are the DMCA's safe-harbor provisions applicable to sound recordings fixed prior to Feb. 15, 1972, (2) and does a service provider's mere viewing of a user-generated video containing third party copyrighted music automatically give rise to a triable issue of fact as to the service provider's knowledge of infringement under the DMCA?
Upon further review of the record, the Court agreed with defendants that Vimeo is entitled to summary judgment with respect to five videos for which the only evidence of employee interaction was that the user's account had been "whitelisted." "It is simply unrealistic to infer that a Vimeo employee watched" those videos. Also upon further review, the Court found that for two videos, the infringing nature of the videos was not objectively "obvious" and therefore Defendants did not have "red flag" knowledge of the videos' infringing content. However, the Court found that 18 of the videos still should go to a jury.
The Court granted Plaintiff's motion to amend the complaint to add additional videos, including both pre- and post- 1972 sound recordings.
Lastly, the Court granted Vimeo's motion to certify two questions for interlocutory appeal: (1) Are the DMCA's safe-harbor provisions applicable to sound recordings fixed prior to Feb. 15, 1972, (2) and does a service provider's mere viewing of a user-generated video containing third party copyrighted music automatically give rise to a triable issue of fact as to the service provider's knowledge of infringement under the DMCA?
September 20, 2013
Safe Harbor Does Not Protect Vimeo For All Videos
Capitol Records v. Vimeo, No. 1:09-cv-10101-RA (S.D.N.Y. Opinion & Order filed 09/18/13) [Doc. 119].
Plaintiffs are record labels and publishers that brought a copyright infringement action against Vimeo, an online video sharing platform. Vimeo moved for summary judgment, asserting entitlement to “safe harbor” protection pursuant to the DMCA. Plaintiffs cross-moved for partial summary judgment seeking a ruling that Vimeo is ineligible for such protection. The question before the Court was whether Vimeo is entitled to safe harbor protection pursuant to the DMCA. The Court held that triable issues of fact remained as to whether Vimeo is entitled to safe harbor protection as to fifty-five of the videos that Vimeo employees interacted with or uploaded. However, the Court held that Vimeo was entitled to summary judgment as to the remaining 144 videos at issue in the suit.
First, the Court considered threshold criteria whether Vimeo is eligible for safe-harbor protection. The Court found that Vimeo is a "service provider", it had adopted and reasonably implemented a "repeat infringer policy", and it did not interfere with standard technical measures. Thus, Vimeo was eligible for safe-harbor protection.
Having satisfied the threshold criteria, the Court considered whether Vimeo met the requirements of § 512(c), which apply to any claims “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” As to 10 of the videos, the Court found a triable issue with respect to whether certain employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope
of their employment. Also, the Court found triable issues exist as to whether Vimeo acquired actual or red flag knowledge of the infringing content in 55 videos with which Vimeo employees interacted (e.g., commented on the videos, "liked" the videos, placed on channels etc.) By contrast, there was no evidence that Vimeo acquired actual or red flag knowledge as to 144 videos with which Vimeo employees indisputably did not interact, and Vimeo was thus entitled to summary judgment as to these videos.
Plaintiffs' "willful blindness" arguments failed. The Court noted that service providers are under no affirmative duty to seek out infringement, even when they possess technological measures permitting them to do so.
Also, the Court concluded that Vimeo lacked the right and ability to control infringing activity. The Court considered the totality of Vimeo’s monitoring program, and rejected Plaintiffs’ arguments and found no triable issue as to the exertion of substantial influence on user activity. The Court also rejected Plaintiffs' argument that Vimeo exerted substantial influence on its users’ activities through inducement.
The Court also concluded that Vimeo acted expeditiously when it removed videos pursuant to take-down notices.
Lastly, the Court concluded that DMCA protection did not apply to pre-1972 sound recordings. The Court recognized other authority in the SDNY that found otherwise, but found the recent decision by the New York First Dep't, UMG Recordings, Inc. v. Escape Media Grp., Inc., 964 N.Y.S.2d 106 (1st Dep’t 2013), and the December 2011 Copyright Office Report concluding that the DMCA safe harbors do not apply to pre-1972 records. Accordingly, even those 144 videos that were otherwise protected by the DMCA are not protected if they are pre-72 recordings.
Plaintiffs are record labels and publishers that brought a copyright infringement action against Vimeo, an online video sharing platform. Vimeo moved for summary judgment, asserting entitlement to “safe harbor” protection pursuant to the DMCA. Plaintiffs cross-moved for partial summary judgment seeking a ruling that Vimeo is ineligible for such protection. The question before the Court was whether Vimeo is entitled to safe harbor protection pursuant to the DMCA. The Court held that triable issues of fact remained as to whether Vimeo is entitled to safe harbor protection as to fifty-five of the videos that Vimeo employees interacted with or uploaded. However, the Court held that Vimeo was entitled to summary judgment as to the remaining 144 videos at issue in the suit.
First, the Court considered threshold criteria whether Vimeo is eligible for safe-harbor protection. The Court found that Vimeo is a "service provider", it had adopted and reasonably implemented a "repeat infringer policy", and it did not interfere with standard technical measures. Thus, Vimeo was eligible for safe-harbor protection.
Having satisfied the threshold criteria, the Court considered whether Vimeo met the requirements of § 512(c), which apply to any claims “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” As to 10 of the videos, the Court found a triable issue with respect to whether certain employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope
of their employment. Also, the Court found triable issues exist as to whether Vimeo acquired actual or red flag knowledge of the infringing content in 55 videos with which Vimeo employees interacted (e.g., commented on the videos, "liked" the videos, placed on channels etc.) By contrast, there was no evidence that Vimeo acquired actual or red flag knowledge as to 144 videos with which Vimeo employees indisputably did not interact, and Vimeo was thus entitled to summary judgment as to these videos.
Plaintiffs' "willful blindness" arguments failed. The Court noted that service providers are under no affirmative duty to seek out infringement, even when they possess technological measures permitting them to do so.
Also, the Court concluded that Vimeo lacked the right and ability to control infringing activity. The Court considered the totality of Vimeo’s monitoring program, and rejected Plaintiffs’ arguments and found no triable issue as to the exertion of substantial influence on user activity. The Court also rejected Plaintiffs' argument that Vimeo exerted substantial influence on its users’ activities through inducement.
The Court also concluded that Vimeo acted expeditiously when it removed videos pursuant to take-down notices.
Lastly, the Court concluded that DMCA protection did not apply to pre-1972 sound recordings. The Court recognized other authority in the SDNY that found otherwise, but found the recent decision by the New York First Dep't, UMG Recordings, Inc. v. Escape Media Grp., Inc., 964 N.Y.S.2d 106 (1st Dep’t 2013), and the December 2011 Copyright Office Report concluding that the DMCA safe harbors do not apply to pre-1972 records. Accordingly, even those 144 videos that were otherwise protected by the DMCA are not protected if they are pre-72 recordings.
May 16, 2013
Reconsideration in MP3Tunes Case
Capitol Records, Inc. v. MP3Tunes, LLC, No. 07-cv-9931 (S.D.N.Y. filed May 14, 2013) [Doc. 368].
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
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