Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act

On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo. 1

The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York. 2 Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as “not You Tube,” 3 makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free. 4

If I might steal a page from the Electronic Frontier Foundation, the decision is “dangerous” in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the “plain meaning” of a statute.

In sum, the Court:

  • Ruled that even though “Pre-1972 recordings have never been covered by the federal copyright” 5 they nevertheless are covered by federal copyright for the purposes of notice and takedown.
  • Ruled the “safe harbor” provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
  • Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
  • Called the notice and takedown system “an augmentation of rights of copyright owners, 6 but when challenged on this position by an amicus curae that the system “shortchanged” copyright owners, contradicts itself and says “we have no way of knowing.” 7
  • Says workers at Vimeo can’t be held responsible for knowing when something is infringing because they are not “an expert in music or the law of copyright.” 8
  • Examples of Vimeo employees encouraging users to upload infringing content “cannot support a finding of…generalized encouragement of infringement.” 9

So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process. Consider this passage:

“To construe § 512(c) as leaving service providers subject to liability under state copyright laws for postings by users of infringements of which the service providers were unaware would defeat the very purpose Congress sought to achieve in passing the statute. Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws.” 10

Gosh, did they just cut and paste this from a brief by the Electronic Frontier Foundation?

The problem is that federal copyright law has never, ever applied to pre-1972 sound recordings. Who said so? You did, Second Circuit. In this very same opinion.

“Pre-1972 recordings have never been covered by the federal copyright. Accordingly, copyright protection of pre-1972 sound recordings has depended on the copyright laws of the states.”

Precisely. And most importantly, existing copyright law cannot diminish those state law rights. Section 301 of the copyright act is very plain about this.

“With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.” 11

In other words, nothing in the remaining portions of the copyright act can serve to limit my remedies under any state law or common law in my pre-1972 sound recording.

Which is exactly why the Second Circuit ruling is clearly wrong. Section 512 takes away my right to sue a service provider from infringing my pre-1972 sound recordings. This limits my remedies under state law. Unless Congress is going to amend 301 to provide for an exception for “safe harbor” it cannot act in the way that this Court has just ruled that it did.

This is the most basic form of statutory construction: what is the “plain meaning” of the words in the statute. The plain meaning is: the remainder of the copyright act does not apply to pre-1972 sound recordings if it acts to limit or take away my rights under state law.

This is why the Copyright Office came to the conclusion that even though there was no “policy reason” not to grant safe harbor for pre-1972 sounds recordings, it was plain that “Congress did [not] in fact subsequently regulate pre-1972 sound recordings in section 512(c).” 12

Said the Copyright Office:

“The court in MP3tunes stated that ‘[t]he text of the DMCA limits immunity for the ‘infringement of copyrights’ without drawing any distinction between federal and state law.’ The court in MP3Tunes made this determination despite the fact that section 301(c) states ‘[w]ith respect to sound recordings first fixed before February 15, 1972, any rights or remedies under the common law or statute of any State shall not be annulled or limited by this title until February 15, 2067.’ The court in MP3Tunes correctly observed that ‘section 301(c) does not prohibit all subsequent regulation of pre-1972 recordings.’ However, its conclusion that Congress did in fact subsequently regulate pre-1972 sound recordings in section 512(c) is difficult to square.” 13

“The statute’s plain text reveals a narrow definition of ‘copyright infringement’ which is buttressed by the language of section 301(c). The court in MP3Tunes concluded that such a narrow reading would be at variance with the policy of the DMCA as a whole and would ‘spawn legal uncertainty’ and that therefore such an interpretation should be rejected. However, the court in MP3Tunes did not offer any evidence that Congress intended section 512(c) to apply to pre-1972 sound recordings. The court in MP3tunes not only ignored the plain text of the statute, it also ignored the general rule of statutory construction that exemptions from liability, such as those established in section 512(c), must be construed narrowly, ‘and any doubts must be resolved against the one asserting the exemption.’” 14

Faced with this conclusion, the Second Circuit goes into full harrumph mode.

“While we unhesitatingly acknowledge the Copyright Office’s superior expertise on the Copyright Act, we cannot accept its reading of § 512(c). It is based in major part on a misreading of the statute. The Report’s main argument—that § 501(a) defines the words ‘infringement of copyright’ as meaning infringement of the rights granted by the federal statute—misreads this provision. And as for the arguments based on canons of statutory construction, a subject not within the special expertise of the Copyright Office, we respectfully conclude that the pertinent canons were misunderstood and misapplied.” 15

The main argument of the Copyright Office is not the definition of “infringement of copyright” which prohibits the application of 512, it’s that section 301 says “you can’t do it.” Go back and read the excerpt. Section 301 is mentioned three times in two paragraphs, and the phase “plain text” is mentioned twice.

Backed into this logical corner, the Court pulls this one out of thin air:

“Here, to the extent that Congress can be said to have repealed by § 512(c) an aspect of the rule it had previously enacted in § 301(c), it was not by implication but by specific statement…. Here, in contrast, the partial repeal of § 301(c) was by the explicit statement in § 512(c) that “[a] service provider shall not be liable … for infringement of copyright ….” 16

This is absolute nonsense. A partial repeal rendered by an “explicit statement” that never says it’s a partial repeal? Not very explicit, wouldn’t you say? Nowhere in section 512 does it ever mention section 301 or say it is making this applicable to pre-1972 sound recordings. Where is the legislative history that states that Congress intended a “partial repeal” of section 301? Absolutely nowhere.

This is just an out and out rewrite of the copyright law by a Court that has no power to do so. And dangerously so. The Copyright Office had already thought of this and pointed out the logical flaw in such thinking.

“The Office observes that numerous other limitations and exceptions in Title 17, including those in sections 107 and 108, are also express limitations on the right to recover for ‘infringement of copyright.’ Yet none of these exceptions in the federal copyright statute has ever been applied directly to any claims under state law. In short, it is for Congress, not the courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights granted under the Act and the limitations on those rights (such as section 512) set forth in the Act.” 17

Precisely. If Section 512 involves a “partial repeal” of section 301, then so does section 107 which provides that fair use “is not an infringement of copyright” and section 108 which provides that libraries’ reproductions of phonorecords in certain circumstances “is not an infringement of copyright.” In other words, the Second Circuit has just ruled that Section 301 is meaningless. They have ruled that the entire remainder of the copyright act does apply to pre-1972 sound recordings, regardless of the plain text of 301 which states that it does not.

Not content to re-write the copyright act by eviscerating section 301, the Court then further rewrites section 512 by now requiring that judgments of infringements can only be done by “experts.”

“The hypothetical ‘reasonable person’ to whom infringement must be obvious is an ordinary person—not endowed with specialized knowledge or expertise concerning music or the laws of copyright…the mere fact that an employee of the service provider has viewed a video posted by a user (absent specific information regarding how much of the video the employee saw or the reason for which it was viewed), and that the video contains all or nearly all of a copyrighted song that is ‘recognizable,’ would be insufficient for many reasons to make infringement obvious to an ordinary reasonable person, who is not an expert in music or the law of copyright.” 18

Where on earth did that come from? The Court makes no citations to any authority from any source for this new radicalized gloss on section 512. It’s ipse dixit, or “it is so because I say it.”

Now, let me get this straight. The Ninth Circuit Court of Appeals in the “Prince-Dancing Baby” case says that I must engage in “fair use” analysis before I can validly send a takedown notice. 19 If I’m your average John or Jane Doe independent artist, I may not be either an expert in music or copyright law. But before I can send a takedown notice, I must engage in a complex four part legal analysis that even Judges sitting on the Courts of Appeals of this nation have sharp disagreements about. 20

However, the Second Circuit says the opposite is not true. Consider this:

“Employees of service providers cannot be assumed to have expertise in the laws of copyright. Even assuming awareness that a user posting contains copyrighted music, the service provider’s employee cannot be expected to know how to distinguish, for example, between infringements and parodies that may qualify as fair use.” 21

So, if I work for Vimeo, a video that contains Bobby McFerrin’s “Don’t Worry Be Happy” 22 does not give me “red flag knowledge” as an infringement because I am not an “expert in music or the law of copyright.”


This is the ruling even where it was shown that Vimeo’s team was in fact giving out legal advice!

“The Official answer I must give you is: While we cannot opine specifically on the situation you are referring to, adding a third party’s copyrighted content to a video generally (but not always) constitutes copyright infringement under applicable laws … Off the record answer … Go ahead and post it ….” 23

Or the fact that Vimeo’s employees were encouraging the posting of infringing material.

“Blake Whitman, a member of Vimeo’s Community Team, responded to a question regarding Vimeo’s “policy with copyrighted music used as audio for original video content” by telling the user, “[d]on’t ask, don’t tell ;).” 24

So, the bottom line is that a person sending a takedown notice must engage in expert music and copyright law analysis, but a website hosting user generated content gets to encourage the posting of infringing material and escape liability because they are not music or copyright law experts.

As Mr. Spock would say: “highly illogical.”

And, further doubling down on its fallacious reasoning, the Court states:

“[that] Vimeo employees inappropriately encouraged users to post videos that infringed music cannot support a finding of the sort of generalized encouragement of infringement supposed by their legal theory.” 25

Ahem. The person writing this is the Vice-President of Product and Development at Vimeo:

“Who wants to start the felons group, where we just film sh*tty covers of these [Plaintiff EMI] songs and write ‘F**K EMI’ at the end?” 26

Really? “F**k EMI” is not a generalized encouragement of infringement?

As noted above, the entire opinion reads as if it was a cut and paste job from an EFF polemic. Consider this passage:

“Congress’s objective was to serve the public interest by encouraging Internet service providers to make expensive investments in the expansion of the speed and capacity of the Internet by relieving them of burdensome expenses and liabilities to copyright owners, while granting to the latter compensating protections in the service providers’ takedown obligations. If service providers were compelled constantly to take stock of all 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, these obligations would largely undo the value of § 512(m). We see no merit in this argument.” 27

You have got to be kidding me. These “compensating protections” are a joke, and everyone knows it. The RIAA and the Copyright Alliance made this point explicit in their amicus curae brief with the Court, which as typical for this decision, is relegated to an endnote.

“Plaintiffs and their amici protest that copyright owners are shortchanged by the compromise. They argue that the notice-and-takedown provisions are of little value… It may be that Congress overestimated the value to copyright owners of the notice-and-takedown provisions of the statute. We have no way of knowing.” 28

Yes you do. You are making that exact argument by calling notice and takedown a “compensating protection” as if it is a given fact, when your assertion has no citations whatsoever. If this fact is not true, then your argument has no merit.

Yet, there is still time for one final fallacious frippery:

“But assuming copyright owners’ complaint has merit, the need for remediation is a question for Congress. We have no choice but to apply the statute as Congress wrote it.” 29

No. Applying the statute as Congress wrote it is exactly what you did not do.


  1. 2016 WL 3349368 Second Circuit Court of Appeals
  2. Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60’s Just Changed the Course of Broadcast Music?
  3. Understanding Capitol Records v. Vimeo
  4. Vimeo at page 5
  5. Vimeo at 6
  6. Id. at 3
  7. Id. at 15 endnote 4
  8. Id. at 10
  9. Id. at 13
  10. Id. at 8
  11. 17 USC 301 (c)
  14. Id. at 132 (emphasis added)
  15. Vimeo at 7
  16. Id. at 7
  18. Vimeo at 10
  19. Lenz v. Universal Music Group, Ninth Circuit Court of Appeals 2015 WL 5315388
  20. Is a “Mirror Copy” a Transformative Fair Use? This Court Says Yes…These Courts Say No…and the Supreme Court Says Nothing
  21. Vimeo at 12
  22. Vimeo at 5
  23. Id.
  24. Id.
  25. Id. at 13
  26. Id. at 5
  27. Id. at 15
  28. Id. at endnote 4
  29. Id.

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