This case considers defenses under the Digital Millennium Copyright Act (DMCA) for video hosting service Vimeo. The court rejects plaintiff’s arguments, supported by the US Copyright Office, that the DMCA does not apply to sound recordings from before 1972. It also considers the DMCA’s provision that hosts forfeit their DMCA immunity if they have “red flag” or constructive (not actual) knowledge of infringement.
The red flag knowledge dispute centers on “lip dub” videos, in which users lip sync or mouth the words of songs. Plaintiffs maintain that if platform employees see lip dub videos featuring full-length songs on the site, they can be charged with red flag knowledge that the videos are infringing. The court rejects this argument, noting that employees are not copyright or music experts, and cannot be expected to recognize American popular music specifically. It also held that the plaintiffs could not demonstrate willful blindness based on the platform (a) reviewing videos without the audio; (b) failing to investigate under suspicious circumstances; or (c) encouraging infringing uploads of specific works not at issue in the case.