DMCA Safe Harbor Defended
Law, disrupted｜法律访谈
John is joined by Todd Anten, partner in Quinn Emanuel’s New York office and co-chair of the firm’s Trademark, Copyright, and Trade Secret practices, and Owen F. Roberts, partner in Quinn Emanuel’s New York office. They discuss a sixteen-year copyright dispute involving two appeals to the Second Circuit that centered on the scope of the Digital Millennium Copyright Act’s safe harbor provision. The plaintiffs were major music publishers and recording companies that own the copyrights to some of the world’s most famous songs. The defendant, represented by a Quinn Emanuel team led by Todd and Owen, was Vimeo, a popular video hosting and video sharing platform. The plaintiffs alleged that Vimeo should be held liable for copyright infringement based on users who posted videos incorporating the plaintiffs’ music without permission. The core issue was whether Vimeo was protected by the DMCA’s safe harbor provisions, which shield platforms such as Vimeo from copyright liability for the acts of
their users as long as they comply with certain requirements.
Among those requirements are that: (1) the platform does not have “the right or ability to control” allegedly infringing activity; and (2) the platform removes user-posted videos upon receiving sufficient knowledge of infringement, for example, the receipt of a DMCA notice from the copyright holder, or “red flag” knowledge that a video is obviously infringing. The plaintiffs argued that Vimeo did not satisfy these requirements. First, they argued that Vimeo’s voluntary internal moderation practices, such as the removal of unwanted videos, demonstrated that Vimeo controlled users’ infringing activity. Second, although the plaintiffs never sent Vimeo a DMCA takedown notice, they argued that Vimeo staff’s awareness that certain videos contained famous songs was enough to raise an inference of Vimeo’s “red flag” knowledge, imposing a duty on Vimeo staff to remove such videos on sight. In its defense, Vimeo argued that voluntary removal of unwanted videos (for example, bullying, sexual
content, or advertising) did not disqualify it from safe harbor eligibility because it is consistent with the sort of moderation that Congress encouraged in the statute. Vimeo further argued that an ordinary Vimeo employee could not reasonably know whether a video is “obviously” infringing on sight and that the plaintiffs were in fact seeking an end-run around the DMCA notice-and-takedown regime.
The Second Circuit agreed with Vimeo. It first concluded in 2016 that mere awareness that a video contains a famous song is not enough to show that it is obviously infringing; it could be authorized or a fair use, which are fact-intensive determinations. As the Court noted, even judges and copyright scholars have difficulty assessing the boundaries of fair use. The Court emphasized that copyright holders were not without remedy—they could send DMCA takedown notices for expeditious removal, which is the deliberate bargain that Congress struck. In 2025, the Second Circuit further ruled that a platform does not forfeit safe harbor by voluntarily removing unwanted videos, as such activity does not rise to providing “substantial influence” in the creation of infringing videos, and such moderation is inherent in promoting the advancement of technology.
These outcomes reinforce the importance of the DMCA’s statutory notice-and-takedown regime, and underscore that a copyright holder’s desire for a new system is an issue to bring to Congress, not to the courts.
