The court then turned to the right and ability to control prong of Section 512(c), noting
that under Viacom, to establish control there must be a showing of “something more” than the
ability to remove or block content – specifically, that Vimeo exerted substantial influence on the
activities of its users. The plaintiffs argued that Vimeo’s control over user content through its
monitoring program constituted “something more.” Members of Vimeo’s “Community Team”
enforced the restrictions in the Terms of Service as to the content of uploaded videos, which
prohibited unoriginal content as well as commercials, real-estate walkthroughs and “fan vids.”
Community Team members utilized approximately 40 software tools to aid their monitoring,
including the “Thin Ice” and “Wiretap” tools, which allowed monitoring the activities of specific
users suspected of uploading content violative of Vimeo’s policies, the “Sweet Spot” filtering
tool, which searched for and listed videos the duration of which Vimeo had determined
corresponded to the duration of uploaded television shows or movies, and the “Movie Search”
Tool, which ran automated keyword searches for movies currently in theaters. In addition, as to
videos that were compliant with Vimeo’s content restrictions, Vimeo staff had significant
discretion to manipulate the visibility of such content on the web site, e.g., by promoting a
particular video on a popular channel such as the “Staff Picks” channel, “liking” a video and
leaving positive comments on a video’s web page. Vimeo staff members could also demote a
video through the use of a “burying” tool, the effect of which was that the video did not appear
on the “Discover” tab. Finally, the record contained evidence that Vimeo staff communicated
directly with some of its users regarding content, at times suggesting to them that it would
tolerate the uploading of copyrighted material.^2833
The court held that these activities did not constitute “something more” for purposes of
the control prong. The court found that the monitoring program did not purport to, and in
practice did not, exert substantial influence over the content of the uploaded material, which
content Vimeo left in the hands of its users. Unlike the monitoring system in the Cybernet case
(discussed in Section III.C.6(b)(1)(iii).d above), Vimeo did not have guidelines that dictated to
users the layout, appearance and content of material that could be used on its site. Nor did the
ability of Vimeo staff members to demote or promote content constitute control. The court
found it difficult to imagine how Vimeo’s staff of 74 people could, through its discretionary and
sporadic interactions with video on the web site, exert substantial influence on approximately
12.3 million registered users uploading 43,000 new videos each day. The court therefore found
no triable issue as to the exertion of substantial control of user activity.^2834
The plaintiffs further argued that Vimeo’s substantial influence over user’s activities was
also demonstrated by its inducement of infringement, citing a statement in Viacom that
inducement of copyright infringement under Grokster might also rise to the level of control
under Section 512(c)(1)(B). The court noted that the Ninth Circuit had expounded upon this
inducement theory in its Fung decision (discussed in Section III.C.6(b)(1)(iii).w above), where
the Ninth Circuit stated that inducement actions do not categorically remove a service provider
from the Section 512(c) safe harbor, although they could supply one essential component of the
control prong. The district court noted that the Ninth Circuit’s conclusion was a logical one.
(^2833) Id. at 526-29.
(^2834) Id. at 529-30.