plaintiffs had provided no case law, and the court was not aware of any, holding or even
suggesting that a service provider must be denied DMCA safe harbor protection because it
allowed its users to download content. The court also cited the UMG v. Shelter Capital case in
which the Ninth Circuit noted that “access-facilitating processes” such as downloading are
encompassed in Section 512(c)’s language “by reason of the storage at the direction of a
user.”^2830
The court then turned to analysis of whether Vimeo had red flag knowledge of
infringement that would disqualify it from the safe harbor. The court began its analysis by
noting the Second Circuit’s ruling in the Viacom v. YouTube case that the difference between
actual and red flag knowledge is not between specific and generalized knowledge, but rather
between a subjective and an objective standard – actual knowledge turns on whether the service
provider subjectively knew of specific infringement, while red flag knowledge turns on whether
the service provider was subjectively aware of facts that would have made the specific
infringement objectively obvious to a reasonable person. The court found a triable issue of fact
as to whether the objective standard of red flag knowledge had been met for 55 of the videos in
suit with respect to which Vimeo employees had interacted – the employees provided comments
or “liked” 26 of the 55, placed two on channels, “whitelisted” 20 (which precluded other users
from flagging the videos for violation of the Terms of Service) and “buried” four (which caused
them to no longer appear on Vimeo’s home page). The court therefore denied summary
judgment with respect to those 55 videos. However, because there was no evidence that Vimeo
acquired actual or red flag knowledge as the 144 videos with which Vimeo employees
indisputably did not interact, Vimeo was entitled to summary judgment as those videos.^2831
The court rejected the plaintiffs’ argument that Vimeo had been willfully blind to
infringement based on an email from a Vimeo employee responding to a user’s question asking
whether use of copyrighted music in a video was a problem by telling the user that “[w]e allow
it, however, if the copyright holder sent us a legal takedown notice, we would have to comply,”
and another employee responding to a question regarding Vimeo’s policy with respect to
copyrighted music used as audio for original video content by telling the user, “[d]on’t ask, don’t
tell.” Although disconcerting, the court found these examples were insufficient to establish
willful blindness because none of them related to the videos in suit. The court held that, just as
under Viacom the knowledge prong of Section 512(c) may be met only where the plaintiff is able
to prove actual or red flag knowledge as to the specific infringing content at issue in the
litigation, so too proof of willful blindness must be tailored to that same infringing content.
Here, it was undisputed that none of the examples provided by the plaintiffs, or any other
evidence the plaintiffs asserted bore on Vimeo’s willful blindness to infringement, suggested that
Vimeo employees were willfully blind to infringing content in any of the specific 199 videos in
suit.^2832
(^2830) Id. at 519.
(^2831) Id. at 520-22.
(^2832) Id. at 523-24.