Threshold criteria

The threshold criteria require that an online service provider has adopted, reasonably implemented, and informed users of a policy to terminate accounts of users who repeatedly infringe their copyright policy. Based on this, the District Court discussed the following:

1. Whether or not Vimeo qualified as a service provider: "Service provider" is a broad term covering various online entities. The court noted that sites that provide more than basic file storage for users have consistently been found to be service providers. Thus, it reasoned, Vimeo can be considered an online service provider.
2. Whether or not Vimeo had adopted a repeated infringement policy: Vimeo's repeated infringement policy was clearly stated in its terms of use, and supported by emails that show employees did terminate accounts based on infringement. The court held this was enough to show adoption.
3. Whether or not Vimeo had informed users of the policy: This criterion requires the service provider to notify users that they face termination of their use of the service if they repeatedly violate copyright laws. The court determined that Vimeo required registered users to agree not to infringe one another's copyrights, informed users that their accounts could be terminated if the agreement was violated, and provided contact information for Vimeo's DMCA agent.
4. Whether or not Vimeo reasonably implemented the policy: The plaintiffs claimed that Vimeo's implementation was inadequate because it banned email addresses, not IP addresses, and that its treatment of notices received within a three-day period as single instances of infringement was too lenient. However, the court determined that the implementation need not be perfect, only reasonable, and that Vimeo met this requirement.
5. Whether or not Vimeo's policies interfered with "standard technical measures" of identifying and protecting copyrighted works: The court determined that although Vimeo's privacy policy did make it more difficult for copyright holders to collect information regarding their works, it did not specifically interfere with technical measures.

Based on this, the court determined that Vimeo met the threshold requirement for safe harbor protection under the DMCA.^[5]

Safe Harbor Requirements

As to whether Vimeo qualified for a safe harbor pursuant to §512(c), the District Court discussed several factors:

1. Storage at the direction of a user: 10 of the 199 videos had been uploaded by users who were or became Vimeo's employees. The court found that there was a triable issue as to whether they stored the content as "users" or as employees acting on behalf of Vimeo.
2. Knowledge of infringement: 2.a) Some employees had interacted with 55 of 199 infringing videos (by liking, commenting, or reviewing). There was a triable issue as to whether Vimeo acquired "actual or red flag knowledge" of the infringing videos due to these actions by their employees; 2.b) A series of emails by Vimeo employees commenting on or ignoring infringing content was insufficient to establish "willful blindness" on the part of Vimeo.
3. Ability to control infringing content with financial benefits: the court decided that Vimeo's control tactics were not pervasive enough to induce or influence its users to upload copyrighted material.
4. Expeditious removal: The court found that Vimeo had removed the infringing videos expeditiously at plaintiffs' request.

^[6]

Pre-1972 Recordings

The court shared the plaintiffs' view that the DMCA safe harbors did not apply to recordings fixed before February 15, 1972, but declined to extend the DMCA protections, stating this was a policy matter that should be resolved by the Congress. Therefore, the court held that any infringing video-in-suit recorded prior to 1972 was not eligible for safe harbor protection.^[7]