DMCA Safe Harbor Applies to Some Unfair Competition Claims–Capitol Records v. Vimeo

You probably remember this case. Copyright owners sued the video hosting site Vimeo for third party uploaded videos that allegedly infringed their copyrights. Given this was the paradigmatic situation the DMCA safe harbor was designed to address, you’d think this would result in a quick-and-cheap defense win. HA! This lawsuit was filed in December 2009, so it’s closing in on its decade anniversary. In 2013, the district court ruled that the DMCA safe harbor did not apply to state copyrighted works, including pre-1972 sound recordings. In an important ruling in 2016, the Second Circuit reversed that ruling, holding that the DMCA safe harbor did apply to state copyrights. The Second Circuit’s ruling had other provisions generally favorable to Vimeo. On remand, Vimeo invoked the DMCA safe harbor to dismiss the unfair competition claims, which are based on alleged violations of the state copyrights. (Note: the opinion doesn’t mention copyright preemption,…

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