Brief of Amici Curiae Electronic Frontier Foundation, Organization for Transformative Works, the Center for Democracy and Technology, Public Knowledge, and New Media Rights in Capitol v. Vimeo, No. 14-1048 (2d Cir.)

Abstract

Congress deliberately created distinct rules for online service providers in Title II of the Digital Millennium Copyright Act (“DMCA”), codified in Section 512 of the Copyright Act. In order to stimulate the growth of the Internet and electronic commerce, Congress created a set of statutory “safe harbors” that helped service providers predict and manage their legal exposure to copyright infringement liability. This effort proved to be a huge success, encouraging not only the growth of the Internet generally, but the growth of innovative platforms for free expression in particular. The district court’s rulings on both “red-flag knowledge” and pre-1972 sound recordings, if accepted, would thwart Congress’s intent and turn back the clock on the DMCA. The first ruling would effectively impose a standard for red flag knowledge that sharply diverges from this Court’s own requirement that the alleged infringement be “objectively obvious.” It would also set the copyright owner’s burden of production so low that every single service provider could be required to proceed to trial on almost any allegedly infringing material that its employees viewed. The second would present service providers with an impossible choice: either screen every audiovisual work it hosts for potential pre-1972 recordings (which could then expose them to a jury trial if the material used is arguably “well-known” and they allow it to remain online), or risk crushing liability. The result: a renewed climate of legal uncertainty for any service hosting expressive works, particularly works that might contain audio, and the loss of the free expression such services foster. In light of this uncertainty, even moderately cautious service providers may well go a third way, and refuse to host audiovisual works at all. Thus, endorsement of these aspects of the decision below would gravely threaten the profusion of online services and the creative communities that rely upon them to the detriment our common culture. In keeping with Congress’ intent, Amici urge the Court to reject the both district court’s interpretation of the standard for red flag knowledge and its improper exclusion of claims based on pre-1972 sound recordings from Section 512, and protect the predictable legal climate the safe harbors were intended to create.