The U.S. Court of Appeals for the Second Circuit recently published an important decision in Capitol Records, LLC v. Vimeo, LLC (Jan. 13, 2025), clarifying the scope of the “right and ability to control” provision of the Digital Millennium Copyright Act ("DMCA").  The opinion, authored by respected copyright jurist Judge Pierre Leval, affirmed that Vimeo did not lose its DMCA safe harbor protection even though its employees commented on, curated and otherwise interacted with hundreds of videos containing copyrighted music. The decision offers crucial guidance for online platforms that host user-generated content.

DMCA Safe Harbor Refresher

Section 512(c) of the DMCA provides a safe harbor for service providers by immunizing them from liability for copyright infringement based on user-submitted content, provided they meet specific criteria:

Knowledge: The provider must lack actual or “red flag” knowledge of infringement, or promptly remove content after obtaining such knowledge.

Control and Financial Benefit: The provider must not receive a financial benefit directly tied to infringing activity if it has the “right and ability to control” such activity.

Notice-and-Takedown: Upon receiving proper notification, the provider must promptly remove the infringing material.

Case Background

The 15-year old Vimeo case arises from allegations by EMI and its affiliates that the video platform committed copyright infringement by hosting user-uploaded videos that contain the record labels' copyrighted music.  At issue on this appeal were 281 videos with which Vimeo employees had interacted by, for example, commenting on the videos and featuring them as “Staff Picks."  The record labels contended that these actions sufficed to impute Vimeo with "red flag" knowledge that the videos were infringing, and established that Vimeo had the "right and ability to control" the users' infringement, causing Vimeo to lose its DMCA safe harbor protection.

“Right and Ability to Control”

While the court rejected both theories of safe harbor forfeiture, this post focuses on the court's analysis of the “right and ability to control” theory.

Section 512(c)(1)(B) of the DMCA provides that a service provider forfeits safe harbor protection if it "receives a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity." Courts have long been vexed by this language. They recognize that it must mean more than the mere legal and technical ability to block or remove content because, by definition, virtually every service provider has this capability.  Thus, the Second Circuit and other courts have interpreted the statute as requiring “something more” – otherwise, the exception would swallow the rule.

Judge Leval noted that, in Viacom v. YouTube, the Second Circuit interpreted “right and ability to control” as requiring “substantial influence” over user activity. The court then discussed cases that shed light on this standard. In Perfect 10 v. Cybernet Ventures, for example, the court found substantial influence where the platform dictated content layout, provided detailed content direction, and actively monitored submissions.  Similarly, in Mavrix v. LiveJournal, the Ninth Circuit ruled that a platform pre-screening and rejecting two-thirds of user submissions could demonstrate control (Mavrix is the other landmark case on this topic, which I blogged about here).

The court then interpreted the “right and ability” language in light of the DMCA’s goal of balancing the rights of copyright holders with the operational realities of service providers. Judge Leval reasoned that, when a platform is "not merely passively accepting content" but is "playing a large role in shaping the content of user posts," the platform assumes a heightened responsibility.  In such cases, the court found it reasonable to expect the platform to bear the burden of monitoring for infringement, as the operator’s involvement in content selection and curation enables it to check for violations at only a modest additional expense.  As a result, a service provider that exercises this level of control may forfeit safe harbor protection under the DMCA. 

Why Vimeo Did Not Forfeit Safe Harbor

The Second Circuit found that Vimeo’s activities did not rise to the level of “substantial influence.” While Vimeo employees occasionally commented on videos or selected them as “Staff Picks,” these actions did not demonstrate the kind of pervasive control that courts have previously found sufficient to disqualify platforms from the safe harbor. The court emphasized that Vimeo’s practices amounted to content curation rather than control, as users still retained autonomy over their posts.

The court acknowledged that Vimeo's policy requiring videos to be at least in part original, along with its prohibition of pornography, gameplay videos, and other unoriginal content, were “somewhat more intrusive.”  However, the court found that these requirements, which were designed to avoid illegal and offensive content and to make the website more appealing to users with particular interests, were practices that "Congress likely intended to encourage rather than penalize under the DMCA." Finally, only a tiny percentage of videos on Vimeo were affected by these interventions, further supporting the court's conclusion that Vimeo was not exercising "substantial influence" over user content.

Practical Implications for Service Providers

The Capitol Records v. Vimeo decision highlights a critical distinction for online platforms: while moderation and curation do not necessarily strip a provider of DMCA safe harbor protection, “playing a large role in shaping the content of user posts” might. Platforms that carefully manage user-generated content while preserving user autonomy are more likely to maintain legal immunity. However, those that engage in significant pre-screening or actively shape user content face heightened risks of losing the safe harbor.  This ruling serves as a reminder for website operators with user-generated content to assess their content moderation policies in light of the DMCA’s evolving interpretation.