In this case, the defendant Vimeo operated a video sharing platform that required users to
upload only videos that they created, or at least participated in creating. Users were required to
register with a user name, password and email address in order to upload videos to Vimeo’s web
site. Several record company plaintiffs sued Vimeo for direct, contributory and vicarious
copyright infringement based on 199 videos appearing on the site that contained music from the
plaintiffs’ copyrighted recordings. The parties filed cross motions with respect to Vimeo’s
eligibility for the Section 512(c) safe harbor. The court denied summary judgment to Vimeo
with respect to 10 employee-uploaded videos and with respect to 55 videos with which Vimeo
employees interacted, and granted summary judgment to Vimeo with respect to the remaining
videos in suit.^2822
With respect to a repeat infringer policy, from the time of Vimeo’s inception, Vimeo
required users to agree to its Terms of Service, which contained language requiring users not to
use the web site to infringe any copyright or other proprietary rights and warning users that
Vimeo reserved the right to remove videos and terminate user accounts for violations of the
Terms of Service. At some point after its inception, Vimeo began to employ a three strikes rule
whereby it would terminate a user’s account if the user became the subject of three separate,
valid takedown notices. Under this policy, takedown notices received within three days of one
another were treated as a single instance of infringement. The email address associated with the
terminated account was added to a list of banned email addresses that could not be used in
connection with a new account. In addition, when Vimeo reviewed a user account pursuant to a
takedown notice that identified allegedly infringing content in a video, it also reviewed the other
videos in that user’s account for additional violations of the Terms of Service. Any video that
was removed pursuant to a takedown notice was placed on a blocked video list, which prevented
any Vimeo user from re-uploading the same video file. In October 2008, Vimeo began utilizing
a “Purgatory Tool,” which facilitated the tracking of repeat infringers by collecting and
maintaining all videos and accounts removed from the web site, including those removed
because of DMCA takedown notices. A video that was in Purgatory was not longer accessible to
anyone except Vimeo employees with moderator status. When a user account was placed in
Purgatory, all of that user’s videos were automatically placed in Purgatory as well.^2823
The court held that these facts were adequate to establish that Vimeo had adopted a
policy providing for the termination of access for repeat infringers. The court also found that
Vimeo had adequately informed its users of the policy, rejecting the plaintiffs’ argument that
Vimeo had not communicated to its users a specific “repeat” infringer policy until 2011, when its
more specific policy with respect to the handling of repeat infringers was published to its web
site. The court ruled that Vimeo’s communication of a more general policy – threatening
account termination upon any violation of the Terms of Service including single or repeated
instances of infringement – from its inception sufficed.^2824
(^2822) Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 505, 506-07 & 537 (S.D.N.Y. 2013).
(^2823) Id. at 511-12.
(^2824) Id. at 513-14.