Music to Internet service providers’ ears

December 22, 2016
Patterson Thuente IP

Appellate court extends EMCA safe harbor

The Second Circuit Court of Appeals recently ruled on the hotly debated issue of whether the Digital Millennium Copyright Act’s (DMCA’s) safe harbor provision applies to sound recordings created before 1972. That’s when Congress first extended copyright protections to such recordings. With Capitol Records, LLC v. Vimeo, LLC, the Second Circuit is the first federal appellate court to tackle the question, and its opinion no doubt brought a huge sigh of relief from Internet service providers.


Case record

A group of record and music publishing companies sued Vimeo, Inc., a video-sharing website, alleging that Vimeo was liable for copyright infringement because of 199 videos posted on the site. The plaintiffs owned the copyrights on the recordings in those videos.

Vimeo argued that it was protected by the DMCA’s safe harbor provision. The provision shields Internet service providers from liability for infringement when users upload copyrighted content to their sites and the providers are unaware of the infringement. But the DMCA does require providers to remove material if they receive notice of infringement or otherwise become aware of infringement.

The trial court found that Vimeo was protected under the DMCA for 153 of the 199 videos. But it ruled that the safe harbor didn’t apply to recordings created earlier than 1972 because the provision protects only against copyright infringement liability under federal law. Pre-1972 recordings are covered by state copyright laws. Vimeo appealed the ruling.

Court sounds off

On appeal, the Second Circuit found that excluding older recordings would undermine Congress’s purpose for passing the copyright protection law. The legislative history of the DMCA suggests that Congress intended to shield Internet service providers that comply with the rules from liability and make it economically feasible for them to provide online services.

If the provisions didn’t cover pre-1972 sound recordings, service providers would have to monitor every posting to ensure it didn’t contain infringing recordings or incur “potentially crushing liabilities” under state copyright laws. Both would be financially prohibitive. After all, the court noted, some of the most popular recorded music of all time was recorded before 1972, including songs by the Beatles, the Supremes, Elvis Presley, Barbra Streisand and Marvin Gaye.

So the appellate court ruled that the DMCA’s safe harbor provisions do apply to pre-1972 recordings, even though the recordings are protected by state — not federal — copyright law.

This position contradicted statements made by the U.S. Copyright Office in a 2011 report. The court characterized the Copyright Office report’s interpretation as “based in major part on a misreading of the statute.” Contrary to that opinion, the appellate court said that safe harbor protection isn’t limited to copyrights protected by federal law. Rather, a “literal and natural reading” of the provision leads to the conclusion that the phrase “infringement of copyright” includes infringement of state copyright laws.

Note of caution

It’s worth noting that the appellate court decision is precedential only for those states within its territory — Connecticut, Vermont and New York. Internet service providers may not enjoy the same protections for pre-1972 sound recordings in courts in other states.

Capitol Records, LLC v. Vimeo, LLC, No. 14-1048, June 16, 2016 (2d Cir.)

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