San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both.

In this lawsuit, the record labels sued online video site Vimeo, alleging that dozens of sound recordings were infringed in videos posted on the site. A ruling from a district court judge earlier this year found Vimeo could be responsible for copyright infringement, and in doing so imposed new, impossibly high standards for websites hosting user-generated content. In an amicus brief filed Wednesday, EFF argues that the decision undermines the safe harbors created by the Digital Millennium Copyright Act (DMCA), and the innovation and expression those safe harbors make possible.

"The safe harbors give websites a clear set of rules. If they follow the law in their response to complaints from copyright owners, then they can predict and manage their exposure to lawsuits and other legal challenges," said EFF Intellectual Property Director Corynne McSherry. "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."

At issue in Capitol v. Vimeo are videos that Vimeo employees viewed or interacted with, as well as pre-1972 sound recordings, which receive different copyright protection than post-1972 works. Essentially, the decision would seem to offer service providers an impossible choice: scour the website for any content that anyone could argue might include pre-1972 audio and thereby potentially lose safe harbor protections, or risk expensive copyright litigation.

"This is exactly the result that Congress was trying to avoid with the safe harbors—without them service providers unwilling to risk being sued may decide not to host videos and other works with audio at all," said EFF Staff Attorney Vera Ranieri. "We hope the appeals court steps in to reinforce the law and protect free speech and innovation online."

Also joining EFF's brief are the Center for Democracy and Technology, New Media Rights, the Organization for Transformative Works, and Public Knowledge.

For the full amicus brief:

https://www.eff.org/document/amicus-brief-23

Contacts:

Corynne McSherry

Intellectual Property Director

Electronic Frontier Foundation

corynne@eff.org

Vera Ranieri

Staff Attorney

Electronic Frontier Foundation

vera@eff.org