Il 9 circuito 13.01.2025, 21-2949(L) Capitol Records v. Vimeo nega la resp. di Vimeo specificando la red flag data dalla competenza di un dipendente.
Ribadisce inoltre che serve la conoscenza della illiceità dei file contestati, non di una generica possibile/probabile illiceità all’interno di tutti i materiali ospitati.
<<However, we also acknowledged in Vimeo I that it is “entirely possible that an employee of the service provider who viewed a video did have expertise or knowledge with respect to the market for music and the laws of copyright.” Id. at 97 (emphasis added). Thus, as an alternative way to establish red flag knowledge, a plaintiff could produce evidence to demonstrate that an employee (1) was not an “ordinary person” unfamiliar with these fields, and (2) was aware of facts that would make infringement objectively obvious to a person possessing such specialized knowledge. See id.
We noted, though, that “[e]ven an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed,” id., and, as discussed below, even a copyright expert may similarly struggle to identify instances of fair use.
Thus, in order to carry their burden of demonstrating that Vimeo had actual or red flag knowledge of the specific instances of infringement, Plaintiffs needed to show that Vimeo employees were aware of facts making it obvious to (a) a person who has no specialized knowledge or (b) a person that Plaintiffs have demonstrated does possess specialized knowledge that: (1) the videos contained copyrighted music; (2) the use of the music was not licensed; and (3) the use did not constitute fair use>>.
Poi
<<The fact that licensing music, as a general matter, can be challenging or confusing does not make it obvious that music accompanying a particular user-uploaded video was not licensed. Even if a person without specialized knowledge would have intuited a likelihood that many of the posted videos were not authorized, that would not make it obvious that a particular video lacked authorization to use the music.
This is all the more true in view of the uncontested fact that, since 2011, Vimeo had run a store from which users could purchase licenses to use music in videos. Accordingly, Vimeo employees were aware of the existence of simplified opportunities available to purchase licenses. Furthermore, because Plaintiffs have not proved that Vimeo employees had specialized knowledge of the music industry, those employees’ awareness that music found on their videos was under copyright did not show that they knew whether the music they heard on user videos came from EMI or another label. Plaintiffs’ evidence does not support it being apparent to Vimeo employees that the music they heard on any particular video came from a label that did not offer licenses through Vimeo’s store or otherwise.
Plaintiffs also rely on the contention that EMI’s cease-and-desist letter, sent to Vimeo in 2008, put Vimeo employees on notice that any EMI music used on the website was unauthorized. Plaintiffs cite EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 93 (2d Cir. 2016), where we explained that the defendant’s subjective awareness that there had been no legal online distribution of Beatles songs could support red flag knowledge that any online electronic copies of Beatles songs on defendant’s servers were unlicensed. But the same logic does not necessarily apply here. As the district court pointed out, an awareness that EMI sent a letter in the past demanding removal of its music gave no assurance that EMI did not thereafter make contracts licensing the use of its music, especially in view of evidence that some users who posted the videos containing EMI music asserted that EMI had provided them with authorization to use the music. The DMCA does not require service providers to perform research on mere suspicion of a user’s infringement to determine the identity of the music in the user’s video, identify its source, and determine whether the user acquired a license. See Vimeo I, 826 F.3d at 98-99 (explaining, in the context of a contention of willful blindness, that requiring service providers “constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring investigations whenever some level of suspicion was surpassed, . . . would largely undo the value of § 512(m)”).
Even if we concluded that Vimeo had red flag knowledge that EMI’s music in user videos was not authorized or licensed, that would be insufficient to satisfy Plaintiffs’ burden. Plaintiffs needed in addition to show that it would be apparent to a person without specialized knowledge of copyright law, or, alternatively, persons who have been demonstrated to possess specialized knowledge of copyright law, that the particular use of the music in the Videos-in-Suit was not fair use>>.
(segnalazione e link offerti dal blog di Eric Goldman)