Summary
This Second Circuit order grants in part and denies in part a petition for reconsideration filed by copyright holders against Vimeo. The court reaffirms that the plaintiffs waived their argument that Vimeo's promotion of infringing lip-dub videos constituted inducement under MGM v. Grokster, which would have forfeited the DMCA safe harbor defense. However, the court grants the petition in part by striking a footnote from its prior January 2025 opinion that questioned whether this waived argument could be preserved for Supreme Court review.
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Practice areas
Questions Presented
- Whether Plaintiffs waived or forfeited their Grokster-based argument that Vimeo's encouragement of users to post infringing lip-dub videos could establish the DMCA safe-harbor exception for a service provider having the right and ability to control infringing activity.
- Whether the Second Circuit should remove from its prior opinion a footnote questioning whether Plaintiffs had preserved the Grokster-based argument for Supreme Court review.
Holdings
- Plaintiffs waived or forfeited the Grokster-based argument that Vimeo's inducement of users to create infringing lip-dub videos could establish the right and ability to control infringement under 17 U.S.C. § 512(c)(1)(B). The opening brief did not develop that theory in its Argument section and expressly acknowledged that Vimeo I foreclosed it.
- The court granted Plaintiffs' request to remove Footnote 15 from the January 13, 2025 opinion.
Key quotations
“It is a settled appellate rule that issues . . . unaccompanied by some effort at developed argumentation, are deemed forfeited.” (14)
“We reject Plaintiffs’ argument that we erred in finding that they waived (or forfeited) the Grokster-based argument that Vimeo’s inducement of users to lip-dub qualified as right and ability to control.” (18)
“For the foregoing reasons, the petition is hereby GRANTED in part and DENIED in part. We hereby AMEND the January 13 Opinion to remove Footnote 15.” (19)
Factual background
Plaintiffs are rightsholders of musical recordings and alleged that Vimeo was liable for hosting user-uploaded videos containing copyrighted music. Vimeo asserted protection under the DMCA § 512(c) safe harbor. Plaintiffs had argued in the district court that Vimeo's promotion of lip-dub videos and other conduct supported both a Cybernet-based editorial-control theory and a Grokster-based inducement theory, but their opening appellate brief principally pursued the Cybernet theory and stated in a footnote that Vimeo I foreclosed the Grokster theory.
Procedural history
Plaintiffs sued Vimeo and Connected Ventures for copyright infringement based on user-uploaded videos containing Plaintiffs' music. The district court granted summary judgment to Vimeo under 17 U.S.C. § 512(c), and the Second Circuit previously affirmed. In the January 13, 2025 opinion, the court held that Plaintiffs had waived the Grokster-based argument. On reconsideration, the court denied relief as to waiver but granted the request to remove the footnote concerning Supreme Court review.