Could This Case Change the DMCA Safe Harbor Provisions?


2017 has been shaping up to be an exciting year for copyright practioners. And with Capitol Records, LLC. v. Vimeo, LLC (“Vimeo”), practitioners could see a change in how the Digital Millennium Copyright Act (“DMCA”) provides safe harbor and protection to online service providers that are accused of copyright infringement. In 2009, several music publishing and record companies banded together to sue Vimeo. In their complaint, they alleged that Vimeo, software that acts as online video-sharing platform, infringed upon their copyrights by allowing users to upload videos that included sound recordings owned by the plaintiffs. While the sound recordings that were allegedly infringed upon ranged from recordings that had been recorded before 1972 to present-day, this wrinkle made it especially difficult for courts to determine if there had been outright copyright infringement.

As practioners know, sound recordings that were recorded before 1972 are not entitled to federal copyright protection. Instead, the common practice for legal practioners at that time was to submit the sheet music for the song for copyright registration and protection.

While the legal battle has raged for some time now, last June, the U.S. Court of Appeals for the Second Circuit decided that the DMCA still shields DMCA-compliant Internet service providers from claims of copyright infringement, even if the claims are filed under state law, specifically in regards to pre-1972 sound recordings. Undeterred, the music publishing and record companies have appealed to the U.S. Supreme Court to decide the case. For now, the U.S. Supreme Court has not stated whether they intend to hear the case.

Many critics of the DMCA believe that, as written, it provides far too much protection to online service providers. As most know, if one feels that their copyright is being infringed upon, they merely need to send notice to the online service provider about their claims. The DMCA clearly states how notice must be sent and how the service provider must then respond.

While the DMCA, on its face, initially appeared to be well-crafted and an important innovation in intellectual property law, it has now evolved to the point where notices may be sent in bad faith without any apparent consequences. This is because, as long as the provider takes down the allegedly-infringing material, upon notice, there may be no consequences for such behavior, and copyright owners may have no recourse for response if the notice had indeed been sent in bad faith. Similarly, online service providers may often repeatedly put up infringing material, with impunity, if the infringing material is submitted daily by different users without the providers’ notice. This shifts the burden of policing and enforcement to copyright-owners as opposed to the service providers.

In general, while many have criticized the DMCA for quite some time now, 2017 can provide us with new insight and even a change in the law if the Supreme Court chooses to weigh in on Capital Records, LCC v. Vimeo, LLC, even if it is just to kick the case back down to a lower court for new arguments.

For more information on this topic, please visit our Copyright Litigation service page, which is part of our IP & Business Litigation Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.Additional information about the litigation law firm and its litigation attorneys may be found at

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