Reading the DMCA to mandate that a service provider loses safe harbor protection for conduct
identical to that which would subject it to affirmative inducement liability would mean that any
attempts by a service provider to seek safe harbor protection upon a finding of affirmative
inducement liability would necessarily end before they could even begin. Accordingly, the court
stated that, even if the plaintiffs’ inducement argument had some force here, it was skeptical that,
under the circumstances of this case, inducement alone could provide an adequate basis for a
finding that Vimeo had the right and ability to control.^2835
The court did not find persuasive the plaintiffs’ argument that Vimeo induced
infringement “by example” – specifically by evidence that some of its employees had created
and/or uploaded some of the videos in suit, as well as others with copyrighted or unlicensed
music, at least one of which had been the subject of a DMCA takedown notice. The court found
such evidence not to rise to the level of that adduced in Grokster, either in quality or in kind.
The court found that the relevant standard at issue here – inducement by way of the exertion of
substantial influence on the activities of users – could not be met by evidence of “stray”
instances of wrongful conduct by Vimeo employees on the web site and/or a generalized effort to
promote videos that incorporate music. Accordingly, the court rejected the plaintiffs’ argument
that Vimeo employees’ purported “by example” conduct rose to the level of inducement.^2836
Nor did Vimeo employees’ communication with, and provision of technical assistance to,
Vimeo users constitute inducement of infringement. The court characterized the specific
instances of such support cited by the plaintiffs as largely merely offering technical support as to
the ordinary use of a service. Although Vimeo offered technical support as to how users could
incorporate music into videos, its instructions applied to lawfully and unlawfully incorporated
music alike. The court acknowledged that some communications with users may have induced a
particular user to infringe in a particular instance. But the relevant standard at issue –
inducement by way of exertion of substantial influence on users’ activities – was not met by the
limited anecdotal evidence the plaintiffs had provided. The court held that to establish the right
and ability to control, there must be a showing that the service provider’s substantial influence
over users’ activities was significantly more widespread and comprehensive. The court therefore
concluded that the plaintiffs’ inducement argument failed.^2837
Finally, the court found that Vimeo had expeditiously removed the videos in suit. On the
three occasions, the plaintiffs sent Vimeo a takedown notice and Vimeo removed the videos
identified in the notices. One letter from one of the plaintiffs identified approximately 170
videos on the web site that infringed, and Vimeo removed the videos within approximately three
and one-half weeks. The court found that, given the number of infringing videos at issues, the
three and one-half week period it took Vimeo to comply with the notice constituted expeditious
removal. Vimeo had responded to all other takedown notices from the plaintiffs within the same
day.
(^2835) Id. at 530-31.
(^2836) Id. at 531-33.
(^2837) Id. at 533-35.