A Federal judge’s ruling in a big copyright lawsuit this week should serve as a reminder to everyone involved in copyright litigation: don’t give up merely because a safe harbor exception seems to be in play.
Several big record labels brought a suit against Vimeo, a user-generated content video web site, charging it had infringed copyrights of numerous well-known performers. Vimeo defended against the suit by claiming that it was covered by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).
The court broadly agreed, but it found a “triable issue” in some instances where the record labels alleged that Vimeo employees aided and participated in the upload and promotion of some specific user-posted videos. The key issue at trial will focus on whether Vimeo employees had actual notice of the infringements in which they allegedly participated. If they did, then the safe harbor provision won’t protect Vimeo from liability.
The moral: don’t give up copyright litigation just because a possible safe harbor exists. Examine the facts carefully, and look for evidence that someone employed by the “publisher” knew of the copyright.