Capitol Records v. Vimeo

• Court: Court of Appeals for the Second Circuit
• Decided: January 13, 2025
• Docket: 21-2949
• Status: Published

Opinion

21-2949(L) Capitol Records v. Vimeo

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: October 12, 2023 Decided: January 13, 2025)

Docket Nos. 21-2949(L), 21-2974(Con)

_____________________________________

CAPITOL RECORDS, LLC, a Delaware Limited Liability company, CAROLINE RECORDS, INC., a New York Corporation, VIRGIN RECORDS AMERICA, INC., a California Corporation, EMI BLACKWOOD MUSIC INC., a Connecticut Corporation, EMI APRIL MUSIC INC., a Connecticut Corporation, EMI VIRGIN MUSIC, INC., a New York Corporation, COLGEMS-EMI MUSIC, INC., a Delaware Corporation, EMI VIRGIN SONGS, INC., a New York Corporation, EMI GOLD HORIZON MUSIC CORP., a New York Corporation, EMI UNART CATALOG INC., a New York Corporation, STONE DIAMOND MUSIC CORPORATION, a Michigan Corporation, EMI U CATALOG INC., a New York Corporation, JOBETE MUSIC CO., INC., a Michigan Corporation,

Plaintiff-Appellants,

v.

VIMEO, INC., a Delaware Limited Liability company, AKA VIMEO.COM, CONNECTED VENTURES, LLC, a Delaware Limited Liability company,

Defendant-Appellees, DOES, 1-20 INCLUSIVE,

Defendants. _____________________________________

Before:

LEVAL, PARKER, and MERRIAM, Circuit Judges.

Plaintiffs, rightsholders of musical recordings, all affiliates of EMI, appeal from the judgment of the United States District Court for the Southern District of New York (Ronnie Abrams, J.) granting summary judgment to defendants, Vimeo, Inc. and Connected Ventures, LLC (collectively “Vimeo”), dismissing Plaintiffs’ claims of copyright infringement on the ground that Vimeo is entitled to the safe harbor provided by Section 512(c) of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c), which, in certain circumstances, protects internet service providers from liability for infringement when users of the service upload infringing material onto the providers’ websites. The district court rejected Plaintiffs’ contention that Vimeo had actual or red flag knowledge of the infringement or the right and ability to control the infringing activity, and therefore lost entitlement to the safe harbor.

AFFIRMED.

CATHERINE E. STETSON (Nathaniel A.G. Zelinsky, Hogan Lovells, US LLP, Washington, D.C.; Russell J. Frackman, Mitchell Silberberg & Knupp LLP, Los Angeles, CA, on the brief), Hogan Lovells US LLP, Washington, D.C., for Plaintiff- Appellants.

KATHLEEN M. SULLIVAN (Todd Anten, Owen F. Roberts, Quinn Emanuel

2 Urquhart & Sullivan, LLP, New York, NY; Michael A. Cheah, Vimeo, Inc. & Rachel Kassabian, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, California, for Defendant-Appellees.

Hyland Hunt, Ruthanne M. Deutsch, Alexandra Mansbach, Deutsch Hunt PLLC, Washington, DC, for amici curiae, National Music Publishers’ Association, Recording Industry Association of America, and Copyright Alliance, in support of Plaintiffs-Appellants.

Matthew C. Schruers, Alexandra Sternburg, Computer & Communications Industry Association, Washington, DC, for amicus curiae, Computer & Communications Industry Association, in support of Defendants- Appellees.

Mitchell L. Stoltz, Corynne McSherry, Electronic Frontier Foundation, San Francisco, CA, for amicus curiae, Electronic Frontier Foundation, in support of Defendants-Appellees.

Rebecca Tushnet, Harvard Law School, Cambridge, MA, for amici curiae, Intellectual Property Scholars in Support of Defendants-Appellees.

3 LEVAL, Circuit Judge:

This is an appeal by Plaintiffs, who are rightsholders of musical

recordings, all current or former affiliates of EMI, from the judgment of the

United States District Court for the Southern District of New York (Ronnie

Abrams, J.), granting summary judgment to defendants, Vimeo, Inc. and

Connected Ventures, LLC (collectively “Vimeo”). The district court dismissed

Plaintiffs’ claims of copyright infringement.

Section 512(c) of the Digital Millennium Copyright Act (“DMCA”)

establishes a safe harbor, which protects qualifying service providers from

liability for infringement when users of the service upload infringing material

onto the providers’ websites. See 17 U.S.C. § 512(c)(1). However, the safe

harbor is not available to a service provider if the service provider (A) has

actual or red flag knowledge that the material on its website is infringing and

fails to remove the infringing matter expeditiously, or (B) has the right and

ability to control infringing material on its website and receives a financial

benefit directly attributable to that activity. See id. 1 Vimeo is a qualifying

service provider and operates a website on which users can upload videos to

1 This portion of the statute is set forth at pages 7-8. 4 share either within a restricted circle of users or with the general public. At

issue in this appeal are 281 videos containing copyrighted musical recordings

owned by Plaintiffs. All of the videos selected by Plaintiffs to place in issue in

this suit are videos with which Vimeo employees interacted after those videos

were uploaded by users to Vimeo’s website—for example, by selecting the

video to be featured in a prominent section of the website or by posting a

comment about the video.

The district court found that Vimeo was entitled to the DMCA’s safe

harbor because: (1) although there was evidence that Vimeo employees had

interacted with videos containing infringing content, there was insufficient

evidence to prove that it would have been obvious to those employees that

the content of the videos was neither authorized by the rightsholder nor fair

use; and (2) Plaintiffs failed to show that Vimeo had sufficient “right and

ability to control” within the meaning of the statute to lose entitlement to the

safe harbor. We agree with the district court that Vimeo is entitled to the safe

harbor and therefore AFFIRM the judgment.

5 BACKGROUND

1. Facts

A. The Digital Millennium Copyright Act (“DMCA”)

“The DMCA was enacted in 1998 to implement the World Intellectual

Property Organization Copyright Treaty and to update domestic copyright

law for the digital age.” Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 26 (2d

Cir. 2012) (internal quotations and citations omitted). Title II of the DMCA,

the “Online Copyright Infringement Liability Limitation Act” (“OCILLA”),

established four safe harbors that allow qualifying service providers to limit

liability for certain claims of copyright infringement. See id. at 27. We have

described these safe harbors as a “compromise” between protecting copyright

owners and “insulat[ing] service providers from liability for infringements of

which they are unaware, contained in material posted to their sites by users,

so as to make it commercially feasible for them to provide valuable Internet

services to the public.” Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 82 (2d Cir.

2016) (“Vimeo I”).

If a service provider meets the threshold qualification criteria, see

6 17 U.S.C. § 512(k)(1)(B), (i)(1)-(2), 2 it then has passed those tests of eligibility

for one of the four safe harbors. The safe harbor at issue in this case is

provided by Section 512(c), which protects the provider from liability for

infringement that would arise “by reason of the storage at the direction of a

user of material that resides on a system or network controlled or operated by

or for the service provider.” Id. § 512(c)(1). The statute provides (as here

pertinent):

[(c)(1)] A service provider shall not be liable for monetary relief . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on [its website] . . . , if the service provider—

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

2 Qualification for the safe harbor requires “that the party (1) must be a ‘service provider’ as defined by the statute; (2) must have adopted and reasonably implemented a policy for the termination in appropriate circumstances of users who are repeat infringers; and (3) must not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works.” Wolk v. Kodak Imaging Network, 840 F. Supp. 2d 724, 743 (S.D.N.Y. 2012). 7 (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . . , responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Id. § 512(c)(1)(A)-(C). 3 The statutory scheme also has a notice-and-takedown

provision: Section 512(c)(2) requires that service providers designate an agent

to receive notifications of claimed infringement, and Section 512(c)(3) explains

what elements must be included in such a notification. See id. § 512(c)(2)-(3).

Upon receipt of a valid notification, Section 512(c)(1)(C) requires that the

service provider “expeditiously” remove or disable access to the infringing

material. See id. § 512(c)(1)(C).

3 Although the statute may appear to imply “or” as the conjunction linking clauses (i), (ii), and (iii) of subsection (A), it seems clear that Congress in fact established a more complex relationship among the three clauses. While satisfaction of clause (iii) alone (prompt removal upon learning of the infringement) does secure safe-harbor immunity, it is clear that satisfaction of clause (i) alone (lack of actual knowledge), or of clause (ii) alone (lack of red flag knowledge), is by itself insufficient. The service provider must satisfy both clauses (i) and (ii) to gain entry into the safe harbor without reliance on (iii). The statute links clauses (i) and (ii) by the implied conjunctive “and,” and links clauses (i) and (ii) to clause (iii) by the conjunctive “or.” 8 B. The Vimeo Website

Vimeo is a video-sharing platform created in 2004. It has become one of

the most popular websites on the internet. In 2007, Vimeo had only 40,000

registered users, but as of 2012, it had about 12.3 million registered users

posting about 43,000 new videos a day.

Users who have registered an account with Vimeo can upload videos to

the site. They can add tags (i.e., keywords associated with the video) or

descriptions (also called captions). Other users may write comments, signal

that they “like” videos, subscribe to interest groups that will share videos of

preferred types, and create or subscribe to channels, which are repositories of

videos that have been grouped together by a common theme or category.

Registering as a user is free and can be done anonymously. 4

A posting user may choose to designate a video as “private,” in which

case the video can be viewed only by accounts designated by the poster or

4 Vimeo insists that registration is not truly anonymous because Vimeo users provide a name and email address and Vimeo will block users who try to create a new account with the same email address as an account that has been terminated. Plaintiffs answer that abusive users can avoid this obstacle by registering again under different names and email addresses. Determination of this appeal does not depend on the resolution of this dispute.

9 those who possess a password selected by the poster. If a video has not been

designated as private, both registered and non-registered users (essentially

anybody with access to an Internet connection) can play the video on

demand—either directly on Vimeo’s website or through a third-party website

where the video is embedded—or download the video for later viewing. 5

Vimeo offers both free and paid subscriptions. The majority of its

revenue comes from user subscription fees. Vimeo also earns revenue from

the placement of advertisements on its website, in two ways: for some

advertisements, Vimeo contracts with the advertiser and typically is paid

each time the advertisement is viewed; for others, Google’s AdSense program

selects which advertisements to display to which customer, and Vimeo is paid

each time a user clicks on the advertisement to go to the advertiser’s website.

Beginning in 2011, by contract with certain rightsholders in copyrighted

recordings (mostly smaller labels, not including any Plaintiff in this suit),

Vimeo began offering licenses to users to reproduce copyrighted music

through its music store. Vimeo earns commissions through such sales.

5This is the case unless the download function has been expressly disabled by the posting user. 10 C. Background of the Dispute

Some videos uploaded by users onto Vimeo’s website incorporate

recordings of musical performances for which the rights are owned by

Plaintiffs (including the “Videos-in-Suit”). This lawsuit seeks to impose

liability on Vimeo for those alleged infringements.

Vimeo, for purposes of these summary judgment motions, conceded

that the Videos-in-Suit contain music owned by Plaintiffs and that the uses in

those videos were infringing uses. See J. App’x at 312-13 & n.3. It is

uncontested that Plaintiffs have never licensed this music to Vimeo or its

users who posted it and that Vimeo has never paid Plaintiffs for the use of the

music.

In 2008, EMI sent Vimeo a cease-and-desist letter demanding removal

from the website of videos containing EMI recordings and compositions. The

letter enclosed a list of 173 videos to be removed from the site and demanded

that “Vimeo immediately take appropriate action to ensure that all other EMI-

owned or -controlled works are removed from the Site.” J. App’x at 104.

Vimeo took down the 173 videos listed in the letter. Following this incident,

Vimeo employees emailed one another, seemingly mocking EMI, referring to

EMI personnel as “dicks” and “goofballs.” J. App’x at 994. This lawsuit was 11 filed a year later. Since then, EMI has sent additional take-down notices, with

which Vimeo has complied.

On appeal, there are 281 videos in contention. These are videos

uploaded between 2006 and 2013, which include recordings of musical

performances owned or controlled by Plaintiffs, and with which Vimeo

employees interacted (for example: commented upon, liked, promoted or

demoted, or placed in a community channel). These do not include any videos

that were uploaded by Vimeo employees.

D. Vimeo’s Upload Requirements, Curation, and Moderation

Unlike other video-sharing websites, Vimeo does not allow users to

upload videos that were not created—in whole, or in part—by the uploader.

Vimeo tells users that it does not allow the posting of specified types of

videos, which include advertising videos (such as commercials, infomercials,

and product promotions), videos containing abusive (e.g., bullying) or

sexually-explicit content, real-estate walkthroughs, and, since 2008, so-called

12 “gameplay” videos, wherein the video exhibits a person playing a video

game. 6 Vimeo’s rules also disallow uploads of movies, TV shows, and trailers.

In order to register an account, users must agree to abide by Vimeo’s

Terms of Service. Those terms include an agreement not to upload videos that

infringe another’s rights. Every time a user uploads a video, the user is

reminded of the agreement to upload only self-created videos and to not

upload videos that are intended for commercial use or are otherwise

inconsistent with Vimeo’s content restrictions.

In practice, however, users can generally upload any videos without

interference from Vimeo. Vimeo does not pre-screen videos presented for

uploading. It does engage in a small degree of moderation and curation of its

website. As examples, members of Vimeo’s “Community Team” occasionally

post “likes” (a symbol, such as a heart, indicating approval) or comments,

upload their own videos, and create or subscribe to groups and channels.

They also promote user videos by putting them in prominent places on the

website, such as on Vimeo’s own blog, or on the “Staff Picks” channel. In

6There are exceptions for videos that use a video game in a creative way, for example, by using the video game characters to tell an original story.

13 some instances, staff members remove videos (and, at times, entire user

accounts) for violation of the Terms of Service.

Vimeo has also encouraged users to create certain types of content. In

2006, Vimeo’s founder created a video of himself lip-synching to music while

walking down the street, and then synced the video with music. He named it

“lip-dubbing” and invited others to create their own lip-dubbing videos. At a

company party, Vimeo’s employees created their own lip-dub video, which

was watched millions of times. Lip-dub became a popular trend, and Vimeo

created a channel under the name “Lip Dub Stars.” A lip balm company paid

Vimeo for the opportunity to advertise on the lip-dub channel and also

funded a lip-dub contest.

Vimeo employs various computer programs (“Mod Tools”) to assist the

Community Team in locating and removing videos whose content violates the

Terms of Service. One tool identifies videos that have recently received a large

number of views; another searches the website for current film titles; another

identifies videos that are approximately the length of a typical half-hour or

hour-long television show; and another identifies users who are uploading a

large number of videos in a short period of time. When videos and/or users are

14 identified by one of these tools, Vimeo staff manually review them. Vimeo also

enables users to “flag” videos that they believe violate the Terms of Service.

Community moderators evaluate the flagged content and decide whether or

not to remove it.

E. Employees’ Knowledge Concerning Licensing and Copyright Laws

Plaintiffs have offered evidence to suggest that Vimeo employees had

particular experience with and awareness of facts that would allow them to

discern whether posted uses of music were licensed or were fair use.

Some Vimeo employees have published their own videos, during the

time period of interest, including videos containing Plaintiffs’ music, without

securing a license. In or around 2009, Vimeo employees were told by Vimeo’s

legal team not to use copyrighted music in the background of videos they

created.

In answering questions from users about whether copyrighted music

could be included in the background of a video, Vimeo’s pre-scripted

response was that “adding a third party’s copyrighted content to a video

generally (but not always) constitutes copyright infringement under

applicable laws.” J. App’x at 75, 175, 404-05. Plaintiffs provided evidence

15 showing that, on at least a few occasions, Vimeo employees added text that

undermined the official message, such as, “off the record . . . Go ahead and

post it. I don’t think you’ll have anything to worry about.” J. App’x at 175,

404-05. Vimeo characterizes these interactions as “few in number,

unauthorized, and . . . not reflect[ing] . . . Vimeo’s policy.” J. App’x at 448-49.

In 2011, Vimeo launched a virtual music store where users could pay a

fee to obtain a license to use certain non-major-label music. In launching the

store, Vimeo published a blog post which explained that Vimeo employees

know that licensing music can be “confusing” and “painful.” J. App’x at 1130.

2. Procedural History

On December 10, 2009, Plaintiffs filed their initial complaint, which

named 199 videos that contained allegedly infringing uses of music licensed

to Plaintiffs. In May 2012, Plaintiffs moved to amend the complaint by adding

over a thousand videos. The district court denied the motion with leave to

refile after the court ruled on a motion for summary judgment. On September

7, 2012, Vimeo moved for summary judgment asserting entitlement to safe

harbor protection under the DMCA, and on November 16, 2012, Plaintiffs

cross-moved for partial summary judgment that Vimeo was not entitled to

16 the safe harbor. On September 18, 2013, the district court ruled that Vimeo did

not have the right and ability to control the infringing material at issue and

therefore was not excluded from the safe harbor on that ground. However, it

also ruled that a triable issue of material fact existed as to whether Vimeo had

knowledge or awareness of infringing content for 55 of the videos, with

which Vimeo employees had interacted. 7 As to the remaining 144 videos, the

court granted partial summary judgment to Plaintiffs on those videos

containing infringed-upon material recorded prior to 1972, because, in the

district court’s view, the DMCA safe harbor did not extend to recordings

made prior to 1972. It granted summary judgment to Vimeo on the remaining

videos.

On reconsideration, the district court granted summary judgment to

Vimeo on an additional 17 videos. The court also granted Plaintiffs leave to

amend the complaint, adding 1,476 videos, and certified three questions for

interlocutory appeal: (1) whether the DMCA safe harbor extended to

recordings made prior to 1972; (2) whether Vimeo had knowledge or

7For ten of these videos, which had been uploaded by employees, the district court also found there was a triable issue of fact as to whether they had been “stored at the direction of a user” and therefore were ineligible for safe harbor. See Spec. App’x at 56. 17 awareness of infringing content; and (3) whether Vimeo had “a general policy

of willful blindness to infringement of sound recordings.” Vimeo I, 826 F.3d at

82.

On that interlocutory appeal, this court held that the DMCA safe harbor

does apply to pre-1972 recordings, and thus vacated the grant of partial

summary judgment to Plaintiffs on the videos alleged to infringe music from

before 1972. See id. at 93, 99. We also vacated the district court’s denial of

summary judgment to Vimeo on Vimeo’s red flag knowledge of

infringement, ruling that Vimeo was entitled to summary judgment “unless

plaintiffs can point to evidence sufficient to . . . prov[e] that Vimeo personnel

either knew the video was infringing or knew facts making that conclusion

obvious to an ordinary person who had no specialized knowledge of music or

the laws of copyright.” Id. at 98. We affirmed the district court’s finding that

Vimeo had not been willfully blind to infringement. See id. at 98-99.

On remand, the parties identified 307 videos remaining in dispute and

renewed their cross-motions for summary judgment. The district court ruled

in favor of Vimeo, granting summary judgment in its favor on 281 videos,

holding that, under our standard laid out in Vimeo I, Plaintiffs had failed to

18 show that Vimeo had red flag knowledge of infringing content. On the other

hand, the court did find that there was a disputed issue of material fact as to

26 of the allegedly infringing videos, which had been uploaded by Vimeo

employees. To permit the district court to enter an appealable final judgment,

the parties stipulated to the dismissal of the 27 claims related to these 26

remaining videos, allowing Plaintiffs to reinstitute these claims if the district

court’s ruling is vacated or reversed on any of the claims on appeal. 8 The final

judgment was issued on November 1, 2021, dismissing all of Plaintiffs’ other

claims with prejudice. Plaintiffs filed a timely notice of appeal on November

29, 2021.

STANDARD OF REVIEW

The court of appeals reviews a district court’s grant of summary

judgment de novo, “construing the evidence in the light most favorable to the

party against whom summary judgment was granted and drawing all

reasonable inferences in that party’s favor.” Bey v. City of New York, 999 F.3d

157, 164 (2d Cir. 2021) (citing Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 168-

8 Under Purdy v. Zeldes, 337 F.3d 253, 257-58 (2d Cir. 2003), such a judgment is final and appealable notwithstanding Plaintiffs’ retention of the right to reinstitute claims they had voluntarily dismissed. 19 69 (2d Cir. 2006)). When parties cross-move for summary judgment, each

motion is analyzed separately, “in each case construing the evidence in the

light most favorable to the non-moving party.” Schwebel v. Crandall, 967 F.3d

96, 102 (2d Cir. 2020).

Summary judgment is granted only if “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). Accordingly, a genuine dispute as to a material fact

precludes summary judgment “where the evidence is such that a reasonable

jury could decide in the non-movant’s favor.” Lucente v. Cnty. of Suffolk, 980

F.3d 284, 296 (2d Cir. 2020) (quoting Beyer v. Cnty. of Nassau, 524 F.3d 160, 163

(2d Cir. 2008)).

DISCUSSION

Plaintiffs contend that Vimeo is not entitled to safe harbor under

Section 512(c)(1) of the DMCA because Vimeo cannot meet two of the

statute’s requirements. They argue that Vimeo (1) had “aware[ness] of facts or

circumstances from which infringing activity is apparent” (often referred to as

“red flag knowledge”) and failed to “expeditiously [] remove, or disable

access to, the material,” 17 U.S.C. § 512(c)(1)(A)(ii)-(iii); and that it (2)

20 “receive[d] a financial benefit directly attributable to the infringing activity

[while having] . . . the right and ability to control such activity,” id.

§ 512(c)(1)(B).

Although it is the defendant’s burden to show that it meets the

qualifications for entitlement to the safe harbor—such as by showing that it is

a service provider within the meaning of the statute—we have held, citing the

Nimmer copyright treatise, that it is the plaintiff’s burden to demonstrate that

a service provider has lost entitlement to the safe harbor because it had actual

or red flag knowledge of the infringement. See Vimeo I, 826 F.3d at 94-95. In

our view, for the same reasons, a plaintiff must also bear the burden of

persuasion in showing that the defendant was disqualified from the safe

harbor because it received a financial benefit directly attributable to the

infringing activity while having the right and ability to control such activity.

See 17 U.S.C. § 512(c)(1)(B).

For the reasons explained below, we reject Plaintiffs’ arguments as to

both bases of disqualification and hold that Plaintiffs have failed to establish a

basis to deny Vimeo access to the safe harbor.

21 1. Red Flag Knowledge

Among the conditions that the DMCA establishes for a service provider

to qualify for the protection of its safe harbor are the following: that it “(i)

does not have actual knowledge that the material . . . on the system or

network is infringing; (ii) in the absence of such actual knowledge, [it] is not

aware of facts or circumstances from which infringing activity is apparent

[red flag knowledge]; or (iii) upon obtaining such knowledge or awareness,

[it] acts expeditiously to remove, or disable access to, the material.” 17 U.S.C.

§ 512(c)(1)(A)(i)-(iii). In Viacom, our court explained the difference between

the “actual” and “red flag” knowledge provisions as follows:

The difference between actual and red flag knowledge is . . . not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or ‘subjectively’ knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person.

676 F.3d at 31 (emphasis added). In Vimeo I, we further clarified the

“reasonable person” standard relevant to the red flag knowledge analysis:

“[t]he hypothetical ‘reasonable person’ to whom infringement must be

obvious is an ordinary person—not endowed with specialized knowledge or

22 expertise concerning music or the laws of copyright.” 826 F.3d at 93-94. 9 We

noted that under this standard, a service provider’s non-expert employees

cannot be expected to necessarily know whether a particular use of

copyrighted music in a video constituted infringement, or, alternatively,

whether it was a fair use, see 17 U.S.C. § 107, or authorized under a license. See

Vimeo I, 826 F.3d at 96-97. Accordingly,

the mere fact that a video contains all or substantially all of a piece of recognizable, or even famous, copyrighted music and was to some extent viewed (or even viewed in its entirety) by some employee of a service provider would be insufficient (without more) to sustain the copyright owner’s burden of showing red flag knowledge.

Id. at 97. We concluded that:

Vimeo is entitled to summary judgment on those videos as to the red flag knowledge issue, unless plaintiffs can point to evidence sufficient to carry their burden of proving that Vimeo personnel . . .knew facts making th[e] conclusion [that a video was infringing] obvious to an ordinary person who had no specialized knowledge of music or the laws of copyright.

9The “ordinary person” is not any person; rather, it is “a reasonable person operating under the same or similar circumstances” as a service provider’s employees. S. REP. No. 105-190, at 44 (1998). Thus, under this approach, a plaintiff must show that employees were subjectively aware of facts and circumstances that would have made the infringement objectively obvious to a reasonable person in the employee’s shoes, who is assumed to have no specialized knowledge of music or copyright. 23 Id. at 98. However, we also acknowledged in Vimeo I that it is “entirely

possible that an employee of the service provider who viewed a video did have

expertise or knowledge with respect to the market for music and the laws of

copyright.” Id. at 97 (emphasis added). Thus, as an alternative way to

establish red flag knowledge, a plaintiff could produce evidence to

demonstrate that an employee (1) was not an “ordinary person” unfamiliar

with these fields, and (2) was aware of facts that would make infringement

objectively obvious to a person possessing such specialized knowledge. See id.

We noted, though, that “[e]ven an employee who was a copyright expert

cannot be expected to know when use of a copyrighted song has been

licensed,” id., and, as discussed below, even a copyright expert may similarly

struggle to identify instances of fair use.

Thus, in order to carry their burden of demonstrating that Vimeo had

actual or red flag knowledge of the specific instances of infringement,

Plaintiffs needed to show that Vimeo employees were aware of facts making

it obvious to (a) a person who has no specialized knowledge or (b) a person

that Plaintiffs have demonstrated does possess specialized knowledge that:

24 (1) the videos contained copyrighted music; (2) the use of the music was not

licensed; and (3) the use did not constitute fair use.

Vimeo has not contested that its employees were aware that the Videos-

in-Suit contained copyrighted music. In support of the contention that Vimeo

employees had red flag knowledge that the users were not authorized to

reproduce the copyrighted music, Plaintiffs rely on evidence that Vimeo, in

opening its licensing store in 2011, published a blog post saying that Vimeo

employees were aware that licensing can be confusing and painful. Plaintiffs

argue that if Vimeo employees knew that music licensing could be confusing

and painful, then it would have been obvious to those employees that the

videos they observed containing what they knew to be copyrighted music

had not been licensed. To show that the employees had access to facts that

made it objectively obvious the videos were not fair use, Plaintiffs rely on

evidence that Vimeo told users that using copyrighted music in a video

“generally (but not always) constitutes copyright infringement” and that

Vimeo employees had been told by Vimeo’s legal counsel not to use

copyrighted music in the background of videos they created. See Appellants’

Br. at 59 (quoting J. App’x at 904).

25 We are not persuaded by these arguments. The fact that licensing

music, as a general matter, can be challenging or confusing does not make it

obvious that music accompanying a particular user-uploaded video was not

licensed. Even if a person without specialized knowledge would have

intuited a likelihood that many of the posted videos were not authorized, that

would not make it obvious that a particular video lacked authorization to use

the music. This is all the more true in view of the uncontested fact that, since

2011, Vimeo had run a store from which users could purchase licenses to use

music in videos. Accordingly, Vimeo employees were aware of the existence

of simplified opportunities available to purchase licenses. Furthermore,

because Plaintiffs have not proved that Vimeo employees had specialized

knowledge of the music industry, those employees’ awareness that music

found on their videos was under copyright did not show that they knew

whether the music they heard on user videos came from EMI or another label.

Plaintiffs’ evidence does not support it being apparent to Vimeo employees

that the music they heard on any particular video came from a label that did

not offer licenses through Vimeo’s store or otherwise.

26 Plaintiffs also rely on the contention that EMI’s cease-and-desist letter,

sent to Vimeo in 2008, put Vimeo employees on notice that any EMI music

used on the website was unauthorized. Plaintiffs cite EMI Christian Music

Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 93 (2d Cir. 2016), where we explained

that the defendant’s subjective awareness that there had been no legal online

distribution of Beatles songs could support red flag knowledge that any

online electronic copies of Beatles songs on defendant’s servers were

unlicensed. But the same logic does not necessarily apply here. As the district

court pointed out, an awareness that EMI sent a letter in the past demanding

removal of its music gave no assurance that EMI did not thereafter make

contracts licensing the use of its music, especially in view of evidence that

some users who posted the videos containing EMI music asserted that EMI

had provided them with authorization to use the music. The DMCA does not

require service providers to perform research on mere suspicion of a user’s

infringement to determine the identity of the music in the user’s video,

identify its source, and determine whether the user acquired a license. See

Vimeo I, 826 F.3d at 98-99 (explaining, in the context of a contention of willful

blindness, that requiring service providers “constantly to take stock of all

27 information their employees may have acquired that might suggest the

presence of infringements in user postings, and to undertake monitoring

investigations whenever some level of suspicion was surpassed, . . . would

largely undo the value of § 512(m)”).

Even if we concluded that Vimeo had red flag knowledge that EMI’s

music in user videos was not authorized or licensed, that would be

insufficient to satisfy Plaintiffs’ burden. Plaintiffs needed in addition to show

that it would be apparent to a person without specialized knowledge of

copyright law, or, alternatively, persons who have been demonstrated to

possess specialized knowledge of copyright law, that the particular use of the

music in the Videos-in-Suit was not fair use. Plaintiffs contend that they

showed that the Vimeo staff had “legal acumen” as to copyright laws. See

Appellants’ Br. at 59. We disagree. Their argument rests solely on Vimeo’s

having told its employees not to produce videos containing copyrighted

music and Vimeo’s having communicated to users that using copyrighted

music “generally (but not always) constitutes copyright infringement.” Id.

Those facts do not support the conclusion that a Vimeo employee, absent

familiarity with copyright laws, would have a basis for knowing whether the

28 use of copyrighted music in a particular video was or was not a fair use.

Plaintiffs’ argument goes too far; it would require Vimeo employees to

assume that uses of copyrighted material are never fair use. Vimeo’s exercise

of prudence in instructing employees not to use copyrighted music and

advising users that use of copyrighted music “generally (but not always)

constitutes copyright infringement” did not educate its employees about how

to distinguish between infringing uses and fair use.

Furthermore, at least during the period in question, the boundaries of

fair use were not so well settled as to make clear even to persons well

acquainted with copyright law whether and when a dancing, acting, or lip-

dubbing performance of copyrighted music might pass muster as a fair use.

The difficulty distinguishing fair use from infringement at the time in

question is illustrated by the Supreme Court’s subsequent consideration of

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508

(2023). The question presented to the Court in that case was whether the first

statutory factor for a finding of fair use—“the purpose and character of the

use,” 17 U.S.C. § 107(1)—favored a finding of fair use for a portrait of the

singer Prince, created by Andy Warhol in 1984, which incorporated a

29 copyright-protected photograph of Prince taken by photographer Lynn

Goldsmith, while making changes to the original. See Warhol, 598 U.S. at 516-

18.

More than 40 copyright experts, as “Copyright Law Professors” and

“Art Law Professors,” filed amicus briefs in their own names supporting a

finding of fair use and consequently no infringement. 10 At the same time,

approximately 18 intellectual property professors filed amicus briefs arguing

that the copying did not represent fair use. 11 The Court itself also proved to be

bitterly divided. In the majority opinion, seven Justices rejected the

arguments passionately advanced by two dissenters that Warhol’s changes to

10See Br. of Amici Curiae Copyright Law Professors in Support of Petitioner, Warhol, 598 U.S. 508; Br. of Art Law Professors as Amici Curiae in Support of Petitioner, Warhol, 598 U.S. 508.

11See Br. of Professors Peter S. Menell, Shyamkrishna Balganesh, and Jane C. Ginsburg as Amici Curiae in Support of Respondents, Warhol, 598 U.S. 508; Br. of Amicus Curiae Jeffrey Sedlik, Professional Photographer and Photography Licensing Expert, in Support of Respondents, Warhol, 598 U.S. 508; Br. of Amicus Curiae Prof. Zvi S. Rosen in Support of Respondents, Warhol, 598 U.S. 508; Br. of Professor Guy A. Rub as Amici Curiae in Support of Respondents, Warhol, 598 U.S. 508; Br. of Amici Curiae Institute for Intellectual Property and Social Justice and Intellectual-Property Professors in Support of Respondents, Warhol, 598 U.S. 508; Br. of Professor Terry Kogan as Amicus Curiae in Support of Respondents, Warhol, 598 U.S. 508. 30 the original Goldsmith photograph were transformative and that the ultimate

creation was a fair use. See Warhol, 598 U.S. at 548-50.

Where academic scholars specialized in the study of the fair use

question and the Justices of the Supreme Court are so divided, we cannot

conclude that it was “apparent,” as required by Section 512(c)(1)(A)(ii), to

untutored employees of Vimeo that dancing, acting, or lip-dubbing

performances of copyrighted music uses posted by Vimeo users were not fair

use.

In making this observation, we express no views on the strength or

weakness of arguments that such lip-dubs or dances or acting performances

qualify as fair use. We are merely pointing out the weakness of Plaintiffs’

argument that Vimeo had red flag knowledge of infringement based on mere

observation of the videos by employees with no training in copyright law.

We reject Plaintiffs’ arguments that Vimeo lost the protection of the safe

harbor by virtue of having red flag knowledge that user postings were

infringing and then failing to remove those postings from its website.

31 2. Right and Ability to Control

Plaintiffs also contend that Vimeo lost the protection of the Section

512(c) safe harbor because it “receive[d] a financial benefit directly

attributable to the infringing activity, in a case in which [it had] the right and

ability to control such activity.” 17 U.S.C. § 512(c)(1)(B) (emphasis added).

The difficulty we face at the outset in considering these questions

derives from uncertainty regarding what Congress meant by “right and

ability to control [the infringing] activity.” Id. Exercise of control could mean

many different things. What sort of control did Congress have in mind? How

much control is required? If it meant simply the legal right and the technical

capability to remove videos from the site, or prevent their installation, it

would be rare for a service provider not to fall within that description. In

virtually all cases, private operators of websites that host material posted by

users have the legal right to select the categories of videos they will allow,

and to exclude those that do not conform, as well as the technical ability to

effectuate these choices. Indeed, the Act’s delineation of the scope of its safe

harbor presupposes that the service provider will have the “right and ability”

to remove infringing material from the site, as it provides in Sections

32 512(c)(1)(A)(iii) & (C) that such removal is the means by which the service

provider secures entitlement to the safe harbor upon becoming aware of the

infringing nature of a user’s posting. See Viacom, 676 F.3d at 37.

Construing Section 512(c)(1) to mean that profiting from possession of a

capability that virtually all private service providers are expected to possess

would effectively foreclose access to the Act’s safe harbor and would

substantially undermine what has generally been understood to be one of

Congress’s major objectives in passing the DMCA: encouraging

entrepreneurs to establish websites that can offer the public rapid, efficient,

and inexpensive means of communication by shielding service providers

from liability for infringements placed on the sites by users. It seems highly

unlikely that Congress intended that this ambiguous provision should be

interpreted to have a meaning that would effectively undo a major benefit

that the Act appears intended to confer.

Accordingly, we held in Viacom that a showing of a “right and ability to

control” requires “something more” than the mere ability to remove or block

access to materials on its website. See 676 F.3d at 38 (internal citation omitted).

In describing what the “something more” might be, we noted that (at that

33 time) only one decision of a federal court—Perfect 10, Inc. v. Cybernet Ventures,

Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (“Cybernet”)—had concluded that a

service provider had the right and ability to control infringing activity under

Section 512(c)(1)(B). 12 See Viacom, 676 F.3d at 38. In that unique instance, the

service provider had demanded that its users comply with a particular layout

and appearance, gave its users extensive advice on content, and engaged in

stringent monitoring of images. See Cybernet, 213 F. Supp. 2d at 1173. We

characterized Cybernet as an instance where a service provider exerted

“substantial influence” on user activities. See Viacom, 676 F.3d at 38. We also

suggested in Viacom that a service provider might have a right and ability to

control infringing activity if it had induced the infringing activity. See id.

(citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)).

Since then, only one additional federal court decision—Mavrix

Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1059 (9th Cir. 2017)—has

acknowledged a possibility that a service provider might have come within

12We also noted that other cases had “suggested that control may exist where the service provider is ‘actively involved in the listing, bidding, sale and delivery’ of items [or] . . . controls vendor sales.” Viacom, 676 F.3d at 38 n.13 (internal citation omitted). This is not relevant to our case.

34 the statutory standard of “right and ability to control.” In that case, the

defendant website operator reviewed each user submission for content before

allowing publication and rejected nearly two-thirds of submitted posts. See id.

The Ninth Circuit remanded to the district court with instructions to assess

whether those facts would justify a finding that the service provider had the

“right and ability to control” infringing activity. See id. As with Cybernet, the

site operator’s activities in Mavrix arguably involved exercise of “substantial

influence” over user postings.

Our court has addressed this issue twice since Viacom, in each case

employing a non-precedential summary order to affirm a district court ruling

that found no right and ability to control. First, the district court in Wolk v.

Kodak Imaging Network, Inc. had ruled that the service provider did not have

the right and ability to control because it neither engaged in prescreening, nor

extensively influenced users regarding content, nor altered user content. See

840 F. Supp. 2d at 748. This court affirmed the judgment “substantially for the

reasons stated by the district court” the judgment was proper, finding that the

operator lacked the “right and ability to control” infringing activity. See Wolk

v. Photobucket.com, Inc., 569 F. App’x 51, 52 (2d Cir. 2014) (summary order).

35 Second, the district court in Obodai v. Demand Media, Inc. had ruled that

evidence that the service provider monitored site traffic, but not the content of

user postings, was insufficient to “conclude that [the] defendant exercised

control over user submissions sufficient to remove it from the safe harbor

provision of section 512(c)(1)(B).” No. 11-cv-2503 (PKC), 2012 WL 2189740, at

*8 (S.D.N.Y. June 13, 2012). As in Wolk, this court found that “the district court

correctly determined that [the defendant] was eligible for” the Section 512(c)

safe harbor. See Obodai v. Cracked Ent. Inc., 522 F. App’x 41, 42 (2d Cir. 2013)

(summary order).

Plaintiffs endorse the exercise of “substantial influence” over infringing

activity as the governing standard. See Appellants’ Br. at 27 (“[The Act]

preserves vicarious liability for providers . . . who can exercise ‘substantial

influence’ over users’ infringing activity, and who derive a financial benefit

from that activity. Viacom, 676 F.3d at 38 (citing Cybernet, 213 F. Supp. 2d at

1173).”). Plaintiffs argue that a service “provider’s influence should be found

’substantial’ when the provider exercises editorial judgment, such as by

evaluating content for its merit.” Appellants’ Br. at 28. They contend that, by

promoting and demoting user posts based on their merit or their appeal to

36 other users, as well as by banning videos that merely reproduced pre-existing

content and gameplay videos, Vimeo exercised the sort of substantial

influence that, combined with the profits it earned, at least raised a jury

question of its eligibility for the safe harbor, thus requiring that we vacate the

district court’s grant of summary judgment to Vimeo. They assert that

“Vimeo employees made significant editorial judgments about the precise

kind of activity— user uploads—that infringe copyright” and that “Vimeo’s

level of control over its users’ activity outstripped” the controls found in

Cybernet to constitute exercise of “substantial influence” over the user

postings, resulting in forfeiture of access to the safe harbor. See Appellants’ Br.

at 35.

We cannot agree. In the first place, the extent to which Vimeo

employees exercised control over user posts was far less intrusive than the

controls exercised by the service providers in Cybernet and Mavrix. As noted

above, in Cybernet, the service provider dictated a prescribed layout and

appearance for all user posts, gave its users extensive advice on content, and

engaged in stringent monitoring of images. See 213 F. Supp. 2d at 1173. In

Mavrix, the service provider reviewed each user submission for content before

37 allowing publication and rejected nearly two-thirds of submitted posts. See

873 F.3d at 1059.

Vimeo’s intrusions into user autonomy over their posts were far less

extensive as to both coercive effect and frequency. Calling attention to

selected videos by giving them a sign of approval or displaying them on a

Staff Picks channel (or the contrary, by demoting them) did not restrict the

freedom of users to post whatever videos they wished.

As for Vimeo’s insistence that user videos be limited to those created at

least in part by the user, and its ban of pornography as well as gameplay

videos and other unoriginal content, this was somewhat more intrusive. But

these requirements were in the nature of (i) avoiding illegality and the risk of

offending viewers and (ii) designing a website that would be appealing to

users with particular interests. It seems unlikely that, in Congress’s use of an

ambiguous term in formulating the standards for eligibility for the safe

harbor to encourage entrepreneurs to create websites, it intended to deny

eligibility for the safe harbor to entrepreneurs merely because they sought to

exclude content that violates other laws or because they sought to design sites

to make them appealing to selected categories of consumer preferences—

38 whether for child-friendly videos, videos devoted to dance, kittens and

puppies, hunting and fishing, cars, baseball, wildlife, antiques, carpentry, or

whatever else. The creation of websites designed to satisfy consumer

demands appears to be precisely the sort of entrepreneurial activity that the

safe harbor was intended to encourage. 13

In addition, when one recognizes the huge number of videos posted by

users on Vimeo, Plaintiffs have failed to show that interventions by Vimeo

staff affected more than a tiny percentage. For example, in 2012, 43,000 new

videos per day were posted on Vimeo, which annualized to over 15 million

new videos. During that year, Vimeo had only 74 employees. Apart from how

minimal an intrusion it is for a staff member to select a video to receive an

indication of approval, the number of videos that 74 staff members could

have evaluated and emphasized amounted to no more than an insignificant

13Plaintiffs do not contend that restrictions imposed by a website operator that are designed to avoid illegality, alienation of users, or postings not compatible with the website’s mission cause forfeiture of the safe harbor. Plaintiffs classify such restrictions as “basic site maintenance,” which they assert are distinct from exercises of editorial judgment that forfeit entitlement to the safe harbor. See Appellants’ Br. at 31. Plaintiffs have suggested no reason why Congress would have intended by its ambiguous language to deny a provider the safe harbor merely because it drew attention to videos it believed would appeal to its users or demoted videos it believed would not appeal to its viewers. 39 percentage of those posted. Plaintiffs did not show that staff awards,

consisting of likes, thumbs-ups, and promotions to a Staff Picks channel (or

demotions), came anywhere near amounting to exercising “substantial

influence” over the contents of user-posted videos.

In our view, denial of eligibility for the safe harbor based on such

noncoercive exercises of control over only a small percentage of postings

would undermine, rather than carry out, Congress’s purposes in establishing

the safe harbor. In establishing this safe harbor with its limitations, Congress

sought to achieve a compromise with the following complex objectives. First,

Congress recognized that the creation of websites on which the public could

post videos would render a hugely valuable public service. However, the

expense of either policing all postings to weed out infringements or of paying

damages for infringements by users would be prohibitive. Entrepreneurs

could not be expected to establish such ventures if doing so would expose

them to an open-ended risk of liability for the posting by users of infringing

videos or if they would need to incur unsustainable costs in policing posted

videos to ensure that they were free of infringements. See S. REP. No. 105-190,

at 8 (1998) (“[W]ithout clarification of their liability, service providers may

40 hesitate to make the necessary investment in the expansion of the speed and

capacity of the Internet.”). Congress therefore enacted inducements to

establish such websites by granting safe harbors protecting service providers

from liability for infringements posted by users and by expressly exempting

the service providers from any obligation to conduct burdensome research to

detect infringements. See 17 U.S.C. § 512(m) (“Nothing in this section shall be

construed to [require] a service provider [to] monitor[] its service or

affirmatively seek[] facts indicating infringing activity . . . .”). At the same

time, Congress recognized that the posting of infringements by users of

websites could cause significant economic harm to copyright holders.

Accordingly, Congress placed some limitations on eligibility for the safe

harbor. While Congress deemed it important not to impose on website

operators the huge burden of checking user posts for infringement, it

recognized that this burden would be considerably lessened if the operator

was already voluntarily incurring a large expense in monitoring and

controlling user posts to serve the operator’s own business purposes. In such

cases, where an operator is not merely passively accepting content but is

arguably playing a large role in shaping the content of user posts, checking

41 also for infringements would add only a relatively modest incremental

expense and would not substantially disincentivize the provision of socially

valuable sites. Congress therefore gave rightsholders some limited recourse

against service providers that have the “right and ability to control”

infringements by users, which our court has interpreted to apply in

circumstances when the service provider has exercised “substantial

influence” over user activities. 14 To interpret this provision as Plaintiffs

argue—to deny Vimeo access to the safe harbor merely because of the tiny

influences it exercised—would subject Vimeo to a huge expense in

monitoring millions of posts to protect itself against the possibility of liability

for infringements. It would undermine the compromise that we understand

Congress to have sought. It would prevent service providers from seeking to

14Because availability of the safe harbor turns, in part, on whether the service provider has the “right and ability to control” “the infringing activity,” 17 U.S.C. § 512(c)(1)(B) (emphasis added), it is arguable that exercise of control as to content, or other elements of a site that are unrelated to infringement, does not show “control” within the meaning of the statute. Under this view, exercises of control by site operators that were not addressed to incidence of infringement would contribute nothing to a showing of “right and ability to control” and would therefore be inadmissible as evidence supporting that showing. We do not need to decide whether such exercise of control is relevant to establishing “right and ability to control” infringement because, on either view, Vimeo did not exercise “substantial influence” such that it lost the protection of the safe harbor. 42 make their websites responsive to user desires, substantially diminishing

their utility to the public.

We recognize, as Congress did, that this compromise will cause some

hardships to rightsholders. At the same time, increasing the vulnerability of

service providers to liability for infringements posted by users would result

in diminishing the scope and availability of web services offered by service

providers to the public for lawful use. Where the balance should ideally be

struck is a policy question committed to the judgment of Congress. If

Congress believes we have misunderstood its compromise or has changed its

mind as to where the balance should lie, it is for Congress to pass corrective

legislation.

Last, we address the question whether by promoting the creation of lip-

dub videos, given the likelihood that users would lip-dub currently popular

copyrighted music, Vimeo encouraged infringement and should be deemed

to have thus exercised the “right and ability to control,” risking forfeiture of

the safe harbor. We see force in the argument that encouraging users to make

infringing lip-dubs should trigger forfeiture of a safe harbor designed to

43 protect service providers from liability for infringements for which they were

in no way responsible.

However, Plaintiffs have waived the argument. Their opening brief

declines to assert this argument, explaining that our earlier opinion in this

case “forecloses (at this stage) the argument that Vimeo’s ‘urging’ and

‘encouraging users to post infringing material’ constituted inducement under

Grokster.” Appellants’ Br. at 28 n.5 (quoting Vimeo I, 826 F.3d at 99). 15

We do not read our opinion in Vimeo I as foreclosing this potentially

forceful argument. Our comments in Vimeo I to the effect that Plaintiffs’

arguments were not supported by the evidence concerned a different issue:

willful blindness to infringement, which we ruled could not be demonstrated

15Plaintiffs’ statement in their brief that Vimeo I forecloses the argument “(at this stage)” implies an intention to raise the argument at a later time – presumably before the Supreme Court. Appellants’ Br. at 25 n.5 (emphasis added). Without doubt, there is a well-established practice, when the prior decisions of the court of appeals clearly reject an argument, for an advocate of that argument to raise it before the court of appeals in only a perfunctory fashion, as a token preservation of the argument to be asserted before the Supreme Court. The propriety of that practice, however, depends on the court of appeals having truly rejected the argument. That condition does not apply here. Not only have we not rejected Plaintiffs’ argument: we have not even considered it. Accordingly, we question whether there is justification for Plaintiffs to contend that they have preserved the argument to be raised in the Supreme Court, despite having failed to raise it in this court.

44 by “a handful of sporadic instances . . . in which Vimeo employees

inappropriately encouraged users to post videos that infringed music.” Vimeo

I, 826 F.3d at 99.

In Vimeo I, we rejected Plaintiffs’ contention of Vimeo’s willful

blindness in substantial part because of the tiny scope of isolated instances of

a different sort of encouragement to infringe: where employees deviated from

company policy by telling users not to worry about infringement. 16 Our

opinion neither said nor implied that encouragements to infringe could not

impact Vimeo’s entitlement to the safe harbor under Section 512(c)(1)(B). The

discussion furthermore did not concern Vimeo’s policy to encourage lip-dubs.

We can see no basis for Plaintiffs’ reading our Vimeo I opinion as

“foreclos[ing] . . . the argument that Vimeo’s ‘urging’ and ‘encouraging users

to post infringing material’ constituted inducement.” Appellants’ Br. at 28 n.5.

16“Thus, notwithstanding a few unrelated instances in which its employees improperly encouraged specific infringements, Vimeo can still assert the protection of § 512(m) for the present suit, and claim the benefit of the safe harbor, in the absence of a showing by Plaintiffs of facts sufficient to demonstrate that Vimeo, having actual or red flag knowledge of infringement in the videos that are the subject of Plaintiffs’ suit, failed to promptly take them down.” Vimeo I, 826 F.3d at 99. 45 Insofar as this concerns the resolution of this appeal, the answer is

simple. Because Plaintiffs waived the argument that Vimeo’s policy to

encourage lip-dub videos constituted (or contributed to) the “right and ability

to control” infringements, with adverse consequences under Section

512(c)(1)(B), we do not consider that as a possible basis of liability for Vimeo.

Because we agree with the district court that Vimeo’s other activities—

commenting on and promoting posted videos, and banning certain types of

videos—do not, in combination, support a finding that Vimeo has exercised

“substantial influence” over the infringing activity, as required by Viacom,

Plaintiffs failed to raise a triable question regarding Vimeo’s “right and ability

to control.” Accordingly, we need not reach the question whether Vimeo

received a financial benefit directly attributable to that infringing material.

CONCLUSION

Plaintiffs failed to demonstrate a disputed issue of material fact as to

whether Vimeo had the right and ability to control infringing activity on its

website or whether Vimeo’s employees had red flag knowledge of users’

infringement. Accordingly, we AFFIRM the judgment of the district court.