OTW files amicus brief in Capitol Records vs Vimeo

OTW Spotlight on Legal

Together with a number of allies, OTW’s Legal Committee filed an amicus brief Wednesday in the U.S. Second Circuit Court of Appeals in the case of Capitol Records v. Vimeo. The case began when the record labels sued Vimeo, alleging that a number of fanworks hosted on Vimeo’s site infringed the record companies’ copyrights.

At this stage of the case, the question before the court has to do with the Digital Millennium Copyright Act (DMCA)’s “safe harbor” provision, which protects content hosts like Vimeo (and the AO3) from copyright liability for material posted by their users. Specifically, the court is addressing what constitutes “red flag” knowledge of infringing material that would require the hosting service to remove the material even without receiving a takedown notice. In the brief, the OTW and its allies argue, among other things, that the standard set by the trial court would place unreasonably high demands on sites that host user generated content and would chill valuable speech protected by the fair use doctrine.

One of our partners, the EFF, has posted about the filing, stating “The safe harbors are critical to the Internet’s success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress.”

Our joint brief highlights the value of fanworks and remix creativity, and explains how increasing liability for content hosts would chill creativity and undermine the objectives of the DMCA’s safe harbor provisions, saying:

“The burden would be especially significant for the many small and nonprofit platforms that host remix videos. Such videos often include music from a variety of sources, but the staff that run these sites won’t necessarily be music specialists able to determine when a given track was recorded. Indeed, many remix videos include multiple tracks, making the task still more challenging. The effect of this significantly increased cost and burden, combined with the accompanying uncertainty about potential liability for pre-1972 audio, would almost inevitably be to chill investment in or development of innovative services that might include such content. That chill, in turn, will inevitably stifle the creative works that depend on those services to reach an audience.”

We will keep fans informed on future developments in this case.