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Record labels win right to take Vimeo to court in lip-synching lawsuit

Record labels win right to take Vimeo to court in lip-synching lawsuit

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Capitol Records, EMI, and other labels can move forward with a lawsuit against Vimeo, a New York federal judge has ruled. Vimeo is fighting claims that it failed to take down videos using songs by the Beatles, Radiohead, Jay Z, and other artists without paying for a license, saying it's not responsible to vet every video on the site. Judge Ronnie Abrams, though, thinks the company could have known perfectly well about the infringement — after all, its employees uploaded some of the videos.

The lawsuit dates back to 2009, a few years into the rise of "lip dub" videos that synched amateur performances with real recordings of songs. A group of record labels said that Vimeo wasn't just allowing copyrighted music to be posted without permission, it was actively inducing it by telling users there was no problem with the dubs. In response, Vimeo argued that it was protected by the DMCA's safe harbor provision, which says that companies aren't liable for infringing content posted on their sites or sent through their networks as long as they're apparently unaware of the material and have a system in place for taking it down and penalizing repeat offenders.

Abrams, however, said the evidence was debatable enough to merit a trial in at least some of the cases. 144 of the 199 videos labels wanted to sue over shouldn't be included, she said, but 55 called Vimeo's safe harbor protection into doubt. That's because in those cases, Vimeo employees seem to have directly interacted with the videos. Ten of the files were uploaded by people who were Vimeo employees or would soon get jobs there, and employees had "liked," commented on, or otherwise interacted with 45 more.

Can Vimeo say it didn't know about infringement when ten of the videos were uploaded by its staff?

It's still not an open and shut case. Vimeo says that those interactions aren't enough to prove that employees watched enough of the videos to realize they infringed, and that the company can't be held responsible for all its employees. The labels, obviously, disagree. Abrams hasn't made a call either way, and she says the issue is unclear enough that it merits a trial.

Though Vimeo might not be as safe as it hoped, Abrams agreed with many of its points. She shot down labels' assertion that the company hadn't done enough to implement and announce its policy for repeat infringers, finding that it consistently told users about the rules and regularly enforced them. She also rejected claims that its option to make videos private or protected — a setting used in roughly 10 percent of Vimeo uploads — stopped record labels from finding infringing videos. Though there were worrying examples of Vimeo users ignoring complaints of copyright infringement, other parts of the labels' complaint that the company was turning a blind eye "[amount] to little more than their frustration that Vimeo did not use sophisticated monitoring technology in its possession to seek out and remove instances of infringing content."

She also, though, finds it "dubious" that Vimeo employees would like or comment on a video without watching it, and the labels argue that Vimeo's focus on curation by staff makes it hard to say they were acting in a vacuum. Among other things, some Vimeo employees encouraged lip dubs, which presumably used copyrighted songs. But even if Vimeo loses the copyright infringement suit or settles with the labels, it's not going to be on the hook for inducement: no matter what the company's attitude, there's no evidence it had an effect on how filmmakers actually used the site.