Record labels sue Vimeo, claim social network encourages infringement

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Record labels sue Vimeo, claim social network encourages infringement

Mon Dec 14, 2009 @ 03:56PM PST
By Eriq Gardner

Vimeo-2006.04.18-13.46.49 Get ready for the next major lawsuit in the ongoing copyright wars.

Capitol Records, Caroline Records and Virgin Records America have filed a massive copyright infringement complaint against Vimeo, a social networking website for filmmakers owned by Barry Diller's IAC/InterActiveCorp. The well-financed website claims two million members, many of whom pay a yearly $59.95 membership fee. There's lots of professional-quality footage on Vimeo's website, but how legit is this content?

The plaintiffs contend that Vimeo actively induces its users to infringe copyrights on sound recordings. According to the complaint, Vimeo holds itself out as a site "about original videos, not original music," but "but actively encourages its users to post audiovisual works that feature, contain, or even consist entirely of preexisting musical works, including Plaintiffs' Recordings."

The labels quote one Vimeo staff member who allegedly advised users: "You can use the music, there are ton's [sic] of videos on here with music."

These days, it's become popular for copyright defendants to claim "safe harbor" from liability by implementing strong take-down policies. It's possible that Vimeo will also try to assert DMCA 512(c) safe harbor, as Veoh and Google's YouTube have recently done when faced with lawsuits. 

But reading the complaint, it's easy to see how this case could take another turn.

Many of the works featured on Vimeo are animation, photographs, drawings and mash-ups done by young, innovative filmmakers. Perhaps most controversial is the hot genre of viral video called "lip dubs" where performers lip sync to music. We found this video on Vimeo of Boston University students lip dubbing to the old Jackson 5 hit "I Want You Back," as an example.

Over the past year or so, some (like the EFF) have argued that genres like mash-ups constitute a non-commercial transformative fair use of copyright. In the complaint, the labels argue that the music is not incidental, but rather provides a focal point for the content. The plaintiffs compare these videos to "television programs or independent films, with recordings synchronized with the dialog or the visual material."

It'll be interesting to see if a court sees these kinds of videos as transformative or just another form of content requiring proper license. 

Vimeo could have the financial backing to vigorously defend the case. On the plaintiffs' side are lawyers from Mitchell Silberberg & Knupp, including Christine Lepera and Russell Frackman, who we interviewed last week concerning his representation of the record industry against Napster. 

The labels seek maximum statutory damages in the amount of $150,000 for each copyrighted work infringed. That could be tons of dough—and music to the ailing industry's ears.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to [email protected]

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