United States District Court, S.D. New York
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Capital Records, LLC, a Delaware Limited Liability company, Caroline Records, Inc., a New York Corporation, Virgin Records America, Inc., a California Corporation, Plaintiffs (1:09-cv-10101-RA): Christine Lepera, LEAD ATTORNEY, Jeffrey M. Movit, Mitchell Silberberg & Knupp LLP (NY), New York, NY; Marc E. Mayer, LEAD ATTORNEY, PRO HAC VICE, Russell J. Frackman, Mitchell Silberberg & Knupp LLP, Los Angeles, CA.
For Vimeo, LLC, a Delaware Limited Liability company doing business as Vimeo.com, Connected Ventures, LLC, a Delaware Limited Liability company, Defendants (1:09-cv-10101-RA): Robert Lloyd Raskopf, LEAD ATTORNEY, Quinn Emanuel, New York, NY; Jessica Anne Rose, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY; Michael A. Cheah, IAC/InterActiveCorp, New York, NY; Rachel Marie Kassabian, PRO HAC VICE, Quinn, Emanuel Urquhart Oliver & Hedges, LLP(RedwdCA), Redwood Shores, CA; Todd Steven Anten, Quinn Emanuel, New York, NY.
For The Internet Association (1:09-cv-10101-RA, 1:09-cv-10105-RA), Miscellaneous: Johanna Calabria, LEAD ATTORNEY, Durie Tangri LLP, San Francisco, CA.
For EMI Blackwood Music, Inc., a Connecticut Corporation, EMI April Music, Inc., a Connecticut Corporation, EMI Virgin Music, Inc., a New York Corporation, Colgems-EMI Music, Inc., a Delaware Corporation, EMI Virgin Songs, Inc., a New York Corporation, EMI Gold Horizon Music Corp., a New York Corporation, EMI Unart Catalog Inc., a New York Corporation, Jobete Music Co., Inc., a Michigan Corporation, Stone Diamond Music Corporation, a Michigan Corporation, EMI U Catalog, Inc., a New York Corporation, Plaintiffs: Christine Lepera, LEAD ATTORNEY, Jeffrey M. Movit, Mitchell Silberberg & Knupp LLP (NY), New York, NY; Marc E. Mayer, LEAD ATTORNEY, PRO HAC VICE, Russell J. Frackman, Mitchell Silberberg & Knupp LLP, Los Angeles, CA.
For Vimeo, LLC, a Delaware Limited Liability company, doing business as Vimeo.com, Connected Ventures, LLC, a Delaware Limited Liability company, Defendants (1:09-cv-10105-RA): Robert Lloyd Raskopf, LEAD ATTORNEY, Quinn Emanuel, New York, NY; Jessica Anne Rose, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY; Michael A. Cheah, IAC/InterActiveCorp, New York, NY; Rachel Marie Kassabian, PRO HAC VICE, Quinn, Emanuel Urquhart Oliver & Hedges, LLP(RedwdCA), Redwood Shores, CA; Todd Steven Anten, Quinn Emanuel, New York, NY.
OPINION Am ND ORDER
Ronnie Abrams, United States District Judge.
Three motions are currently pending before the Court in these consolidated cases: (1) Defendants' motion for reconsideration pursuant to Local Rule 6.3, (2) Plaintiffs' motion for leave to file amended complaints to add additional works-at-issue, and (3) Defendants' motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Court grants Defendants' motion for reconsideration in part--awarding them summary judgment with respect to an additional seventeen of the videos at issue in the complaint (the " Videos-in-Suit" )--and denies the motion as to the remaining Videos-in-Suit. The Court grants Plaintiffs' motion for leave to file an amended complaint and certifies for interlocutory appeal its September 18, 2013 Opinion and Order (the " September 18 Order" ), as amended by this Order.
The Court's September 18 Order sets forth the full factual background of this action. See Capitol Records, LLC v. Vimeo, LLC, 972 F.Supp.2d 500,
(S.D.N.Y. Sept. 18, 2013) . Below are those facts relevant to the instant motions.
Defendants operate the website " Vimeo," a platform that permits users to upload and share videos. Vimeo distinguishes itself from other video-sharing sites by requiring users to have created, or at least have participated in the creation of, the videos they upload. As of September 2012, Vimeo hosted over 31.7 million videos, with approximately 43,000 new videos added each day. (Order at 2-3.)
Plaintiffs--record and music publishing companies--filed suit against Defendants in December 2009, asserting claims for direct, contributory, vicarious, and common law copyright infringement, as well as for inducement to infringe copyright and unfair competition. Their complaints, filed separately but substantively identical, each contained a list of the 199 Videos-in-Suit. Plaintiffs own copyrights to the musical recordings used in each of these videos and, for purposes of the present motions, Defendants do not dispute that the Videos-in-Suit used the recordings without authorization. (Defs.' Response to Pls.' 56.1 Stmt. at ¶ 2 n.3.)
The parties conducted an initial phase of discovery limited to whether any of the Videos-in-Suit were protected by the " Safe Harbor" provision of the Digital Millennium Copyright Act (" DMCA" ). The Safe Harbor limits the liability of service providers for copyright infringement that occurs " by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider," as long as the provider satisfies certain criteria. 17 U.S.C. § 512(c)(1). The parties filed cross-motions for summary judgment on the issue of whether Defendants were protected by the Safe Harbor.
In its September 18 Order, the Court granted in part and denied in part both parties' motions. First, it concluded that no evidence suggested that Vimeo's employees had ever viewed the majority of the Videos-in-Suit. Because it found that Defendants had established the other elements of Safe Harbor protection as a matter of law, the Court granted Defendants summary judgment on these instances of infringement. Second, the Court determined that a triable issue existed as to whether Defendants had satisfied the Safe Harbor elements for a second set of Videos-in-Suit. This set consisted of videos with which Vimeo's employees had interacted, because the Safe Harbor requires that service providers not be " aware of facts or circumstances from which infringing activity is apparent." See 17 U.S.C. § 512(c)(1)(A)(ii). It also consisted of videos uploaded by Vimeo employees, because the Safe Harbor only extends to material stored " at the direction of a user." See 17 U.S.C. § 512(c)(1). The Court denied summary judgment to both parties with respect to this set of videos. Third, the Court concluded that the Safe Harbor did not extend to videos containing music recorded before February 15, 1972. Plaintiffs were granted summary judgment on the Safe Harbor issue with respect to these Videos-in-Suit.
The Court thus granted Defendants summary judgment with respect to " 144 Videos-in-Suit, save for those Videos-in-Suit containing infringed-upon material recorded before February 15, 1972." (Order at 56.) Based on Plaintiffs' undisputed submissions regarding which videos contained
pre-1972 recordings, of the 199 Videos-in-Suit, the September 18 Order granted (i) Defendants summary judgment with respect to 136 Videos-in-Suit; (ii) neither party summary judgment with respect to forty-three Videos-in-Suit; and (iii) Plaintiffs summary judgment on the Safe Harbor issue with respect to the other twenty Videos-in-Suit.
1. Motion for Reconsideration
The standard for granting a motion for reconsideration under Local Rule 6.3 " is strict." In re Optimal U.S. Litig., 886 F.Supp.2d 298, 311 (S.D.N.Y. 2012). Generally, a court will deny reconsideration " unless the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Courts may also grant reconsideration because of an " intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin A. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). A motion for reconsideration " is not an opportunity to advance new facts, issues or arguments not previously presented to the Court, nor is it a substitute for appeal." In re Optimal, 886 F.Supp.2d at 312 (footnote omitted).
As noted above, in its September 18 Order the Court cited evidence that Vimeo's employees had interacted with a set of the Videos-in-Suit containing copyrighted music and, from this evidence together with the nature of the videos themselves, determined that a reasonable juror could conclude that Defendants were " aware of facts or circumstances from which infringing activity is apparent." 17 U.S.C. § 512(c)(1)(A)(ii). Such awareness--known as " red flag" knowledge--would disqualify Defendants from Safe Harbor protection. See Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012). The Court thus determined that summary judgment was inappropriate as to these videos. (Order at 33.)
Defendants now ask the Court to reconsider its decision as to thirty-five such videos. (See Defs.' Mem. of Law in Support of Motion for Reconsideration and Certification at 3 & n.1.) They raise two challenges. First, they assert that no evidence shows that their employees ever viewed fifteen of those thirty-five videos. Second, they argue that even assuming a Vimco staff member watched each of the thirty-five videos, the infringing nature of the videos was not " 'objectively' obvious to a reasonable person," as the Second Circuit has required to support a finding of red flag knowledge. Viacom, 676 F.3d at 31.
The Court agrees with Vimeo's first argument but not its second (with the exception of two videos, described in Subsection B). It therefore grants summary judgment to Defendants on seventeen of the thirty-five videos for which they seek reconsideration.
A. Whether Vimeo Employees Watched Fifteen of the Videos
The September 18 Order described several ways in which Vimeo's employees interacted with videos: the employees commented on a video's page, " liked" the video, or " buried" the video so that it no longer appeared on Vimeo's home page. (Order at 29-30.) For each Video-in-Suit with which employees interacted in one of these ways, the Court concluded, a reasonable jury could find that the employee viewed the video containing copyrighted music and had " red flag" knowledge of its infringing nature.
The September 18 Order noted two additional ways in which employees interacted with Videos-in-Suit. First, although users could upload videos on Vimeo at no cost as long as they registered for an account, users could also purchase a " Plus" membership, which entitled them to increased file storage space and additional customization options. (Pls.' Response to Defs.' 56.1 Stmt. ¶ 62.) Citing evidence that Vimeo employees " [r]eviewed some uploaded Videos-in-Suit in 'Plus' users' accounts," the September 18 Order concluded that a triable issue existed as to whether Vimeo employees had " red flag" knowledge of the infringing nature of these videos. (Order at 29.)
Second, the Court noted that Vimeo employees (and only Vimeo employees) could " whitelist" videos, which precluded other users from " flagging" the videos for violating the site's Terms of Service. (Id.) Employees could whitelist an individual video or a user's entire account, in which case all of the videos the user had uploaded became whitelisted. (Supplemental Declaration of Andrew Pile, Jan. 5, 2013 (" Supp. Pile Decl." ), at ¶ ¶ 5, 7.) The Court likewise found that a triable issue existed as to whether Vimeo's employees had " red flag" knowledge of the contents of these videos.
Of the videos as to which the Court denied both parties summary judgment, the only evidence of employee interaction with ten of the videos was that the videos had been uploaded by " Plus" users. (See Supplemental Declaration of James D. Berkley, Dec. 21, 2012 (" Supp. Berkeley Decl." ), Ex. 1.) For five other videos, the only evidence of employee interaction was that they had been uploaded by " Plus" users and the users' accounts had been whitelisted. Defendants assert that the Court should grant them summary judgment as to these fifteen Videos-in-Suit, because no evidence showed that employees viewed any of the videos.
Upon further review of the record, the Court agrees with Defendants. The only evidence that Vimeo employees viewed " Plus" users' videos came from the deposition of Andrea Allen, a Vimeo community monitor. Allen, who was presented with a page showing a list of " Plus" users, stated that she believed the page was used by moderators to view videos in " Plus" users' accounts to ensure compliance with Vimeo's Terms of Service. (Declaration of Russell J. Frackman, January 6, 2013 (" Frackman Decl." ), Ex. 3 at 165:2-19 & Ex. 85.) She noted, however, that she had never used ...