The court then ruled that Vimeo’s repeat infringer policy had been reasonably
implemented. In its nascent years, Vimeo employees identified repeat infringers by reviewing
email records or recalling the names of users previously implicated in a takedown notice. User
accounts violating the Terms of Service were often terminated upon the receipt of the first
DMCA takedown notice. As Vimeo grew in size and the number of takedown notices received
per month increased, Vimeo’s policy became more robust – first in the form of a three strikes
rule and a blocked video list, and eventually in the form of the Purgatory tool.^2825 “That Vimeo’s
enforcement mechanisms advanced in step with the realities of its growing business further
supports the reasonableness of its implementation system.”^2826 The court rejected the plaintiffs’
argument that Vimeo’s policy of blocking only the email address of a repeat infringer was
insufficient because it allowed a repeat infringer to set up another account using a different email
address. Nor was Vimeo required to block by IP address in order to establish reasonableness.
The court also rejected the plaintiffs’ challenge to Vimeo’s policy to treat all notices received
within a three day period as a single instance of infringement, finding such treatment to be
reasonable.^2827
Although the plaintiffs did not expressly argue that Vimeo failed to meet the requirement
that it not interfere with standard technical measures used by copyright owners to identify or
protect copyrighted works, the court noted that the plaintiffs did claim that Vimeo’s privacy
settings prevented copyright owners from collecting information needed to issue a takedown
notice. Even if true, the court found such fact insufficient to demonstrate failure to meet the non-
interference with standard technical measures requirement. Apart from the fact that the plaintiffs
had not identified a standard technical measure that comported with the statute’s definition, the
court held that privacy settings do not constitute interference with standard technical
measures.^2828
The court then turned to the requirement that, for the Section 512(c) safe harbor to apply,
the infringing material must have been stored at the direction of a user. Ten of the 199 videos in
suit had been uploaded by users who were at the time, or later became, Vimeo employees. The
court found a material issue of fact concerning the extent to which the ten videos were uploaded
by Vimeo employees in their personal capacities as opposed to as agents of Vimeo.
Accordingly, a triable issue of fact existed with respect to whether the employees were storing
their content as “users” within the meaning of Section 512(c) or as employees acting within the
scope of their employment. The court therefore denied summary judgment with respect to those
ten videos.^2829
The court rejected the plaintiffs’ argument that because Vimeo permitted downloading of
videos on the web site, it did not provide “storage” within the meaning of Section 512(c). The
(^2825) Id. at 515.
(^2826) Id.
(^2827) Id. at 516.
(^2828) Id. at 517.
(^2829) Id. at 517-18.