United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, United States District Judge.
bring this copyright-infringement action against Vimeo, LLC
and Connected Ventures, LLC (collectively,
"Vimeo"). In 2013, this Court granted in part and
denied in part the parties' cross-motions for summary
judgment and certified several questions to the Second
Circuit for an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). See Op. and Order re: Motions for
Summary Judgment ("2013 Op.") at 56 (Dkt. 119),
as amended by Op. and Order re: Reconsideration,
Amendment, and Interlocutory Appeal ("Recon. Op.")
(Dkt, 139), The Second Circuit accepted the interlocutory
appeal and affirmed in part and vacated in part this
Court's decision, Capitol Records, LLC v. Vimeo,
LLC, 826 F.3d 78, 81 (2d Cir. 2016), cert,
denied, 137 S.Ct. 1374 (2017), Over the following
months, the parties briefed new and renewed motions in light
of the Circuit's decision. This Opinion addresses just
one of those motions: Vimeo's motion to dismiss
Plaintiffs' unfair-competition claims. For the reasons
explained below, that motion is granted in part and denied in
Court and the Second Circuit have recounted this case's
factual background and explained the relevant statutory
scheme. See Vimeo, 826 F.3d at 82-87; 2013 Op. at
2-6. For the purposes of this Opinion, the Court assumes the
reader's familiarity with the case and will restate only
the basics relevant to this motion.
Digital Millennium Copyright Act of 1998 (the
"DMCA") "gives qualifying Internet service
providers protection from liability for copyright
infringement when their users upload infringing material on
the service provider's site and the service provider is
unaware of the infringement." Vimeo, 826 F.3d
at 81 (citing 17 U.S.C. § 512(c)). In effect, the DMCA
provides a safe harbor to "insulate service providers
from liability for infringements of which they are unaware,
contained in material posted to their sites by users, so as
to make it commercially feasible for them to provide valuable
Internet services to the public." Id. at 82.
The pertinent safe harbor protects certain qualifying service
providers from being "liable, .. for infringement of
copyright 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." 17 U.S.C.
own the rights to innumerable songs and seek relief from
Vimeo for instances where their copyrighted songs were
purportedly infringed by videos posted on Vimeo's
website. Plaintiffs' copyrighted songs include both
pre-1972 and post-1972 works, but they do not assert any
federal claims as to the pre-1972 recordings. Rather, as to
those recordings only, Plaintiffs seek relief under state law
for "Common Law Copyright Infringement and
Misappropriation" and "Unfair Competition."
See Am. Comp. ¶¶ 61-75 (Dkt. 141).
Plaintiffs have a good reason for not asserting federal
claims for their pre-1972 works: under the Copyright Act,
there is no federal copyright protection for sound recordings
made before February 15, 1972. Vimeo, 826 F.3d at
87; see 17 U.S.C. § 301(c).
litigation in this case so far has focused on whether (and
the extent to which) the DMCA safe harbor protects Vimeo from
liability. This Court has already ruled on cross-motions for
summary judgment on that affirmative defense. In doing so,
the Court granted summary judgment to Plaintiffs on all the
Videos-in-Suit featuring pre-1972 works on the theory that
the DMCA safe harbor did not apply to pre-1972 works.
See 2013 Op. at 55 & n.2l. The Court then
certified several questions-including the question of whether
the DMCA safe harbor could protect a service provider from
liability based on pre-1972 recordings-to the Second Circuit
for an interlocutory appeal, stayed the case, and granted
Plaintiffs leave to amend their complaint to add additional
Videos-in-Suit. Plaintiffs filed their Amended Complaint on
January 9, 2014. See Am. Comp. (Dkt. 141). In light
of the stay, the Court also permitted Vimeo until 30 days
after the Second Circuit's decision on interlocutory
appeal to respond to the Amended Complaint. See
Endorsed Letter (Dkt. 143).
appeal, the Second Circuit vacated this Court's decision
to the extent this Court had held that the DMCA safe harbor
did not apply to pre-1972 recordings. The Circuit
"conclude[d] that the safe harbor established by §
512(c) protects a qualifying service provider from liability
for infringement of copyright under state law" as well
as federal law. See Vimeo, 826 F.3d at 93.
the safe harbor applies to liability based on infringement of
pre-1972 recordings. In light of the Circuit's decision,
and in response to Plaintiffs' Amended Complaint, Vimeo
now moves to dismiss Plaintiffs' unfair-competition
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must plead "enough facts to state a claim to
relief that is plausible on its face, " Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of entitlement to relief.'"
Id. (quoting Twombly, 550 U.S. at 557). On
a Rule 12(b)(6) motion, the question is "not whether
[the plaintiff] will ultimately prevail, " but rather
"whether his complaint [is] sufficient to cross the
federal court's threshold." Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (internal quotation
marks omitted). In answering this question, the Court must
"accept all factual allegations as true, but giv[e] no
effect to legal conclusions couched as factual
allegations." Stadnick v. Vivint Solar, Inc.,
861 F.3d 31, 35 (2d Cir. 2017) (quoting Starr v. Sony BUG
Music Entm % 592 F.3d 314, 321 (2d Cir. 2010)).
light of the procedural posture of this case, the usual
motion-to-dismiss standards interact with the law of the case
doctrine, which generally requires courts to adhere to their
own decisions "in subsequent stages in the same
case." Johnson v. Holder, 564 F.3d 95, 99 (2d
Cir. 2009) (citation omitted). Where, as here, a case has
been remanded to the district court, the doctrine also bars
relitigation of issues that the appellate court expressly or
impliedly decided on appeal. See Brown v. City of
Syracuse, 673 F.3d 141, 147 (2d Cir. 2012).
moves to dismiss Plaintiffs' unfair-competition claims on
two grounds. First, Vimeo argues that it is protected from
liability for unfair competition under the DMCA safe harbor
and for other reasons. Second, it argues that Plaintiffs have
failed to plead facts adequately supporting ...