U.S. Copyright Office Report on Copyright and AI
January 30, 2025Using Copyrighted Material to Train an AI Engine for a Competitive Product is Infringement
February 19, 2025Recently, the U.S. Court of Appeals for the Second Circuit, in the case of Capitol Records, LLC v. Vimeo, LLC. (January 13, 2025) (opinion here https://tinyurl.com/2symryfk ) ruled on the “right and ability to control” provision of the Digital Millennium Copyright Act (DMCA). The case involves allegations by EMI against Vimeo for copyright infringement. Vimeo had 281 videos containing copyrighted music and Vimeo employees had interacted with these videos reproducing EMI’s copyrighted music.
The DMCA Safe Harbor provisions, Section 512(c), provides safe harbor protection for service providers hosting user-generated content, under specific conditions. One condition is that the provider must not receive financial benefit directly tied to infringing activity if it has the “right and ability to control” such activity.
The Appeals Court interpreted the safe harbor provisions and affirmed that Vimeo did not lose its DMCA safe harbor protection despite employee interactions with videos. The “right and ability to control” was interpreted as requiring “substantial influence” over user activity. The court distinguished between content curation and control, finding that Vimeo’s actions did not constitute “substantial influence.”
This decision offers guidance for online platforms hosting user-generated content. Moderation and curation do not necessarily strip DMCA safe harbor protection. Platforms that “play a large role in shaping the content of user posts” may face higher risks of losing safe harbor protection.