No. 16-771
`
`IN THE
`Supreme Court of the United States
`————
`CAPITOL RECORDS, LLC, ET AL.,
`Petitioners,
`
`v.
`
`VIMEO, LLC, ET AL.,
`Respondents.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Second Circuit
`————
`BRIEF FOR RESPONDENTS IN OPPOSITION
`————
`
`MICHAEL A. CHEAH
`VIMEO, INC.
`555 West 18th St.
`New York, NY 10011
`(212) 314-7400
`
`KATHLEEN M. SULLIVAN
`Counsel of Record
`ROBERT L. RASKOPF
`TODD ANTEN
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Ave., 22nd Fl.
`New York, NY 10010
`(212) 849-7000
`kathleensullivan@
`quinnemanuel.com
`Counsel for Respondents
`February 16, 2017
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`
`
`IN THE
`Supreme Court of the United States
`————
`CAPITOL RECORDS, LLC, ET AL.,
`Petitioners,
`
`v.
`
`VIMEO, LLC, ET AL.,
`Respondents.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Second Circuit
`————
`BRIEF FOR RESPONDENTS IN OPPOSITION
`————
`
`MICHAEL A. CHEAH
`VIMEO, INC.
`555 West 18th St.
`New York, NY 10011
`(212) 314-7400
`
`KATHLEEN M. SULLIVAN
`Counsel of Record
`ROBERT L. RASKOPF
`TODD ANTEN
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Ave., 22nd Fl.
`New York, NY 10010
`(212) 849-7000
`kathleensullivan@
`quinnemanuel.com
`Counsel for Respondents
`February 16, 2017
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`
`
`
`
`QUESTION PRESENTED
`Whether the safe harbor provided by the Digital
`Millennium Copyright Act, 17 U.S.C. § 512(c), which
`limits online service providers’ liability for any “infringe-
`ment of copyright,” applies to infringement claims
`brought under state law as well as federal law, and
`thus extends to claims concerning sound recordings
`fixed before February 15, 1972, which are protected
`only by state law.
`
`(i)
`
`
`
`ii
`CORPORATE DISCLOSURE STATEMENT
`Pursuant to this Court’s Rule 29.6, Respondent
`Vimeo, Inc. (“Vimeo”) is owned by IAC/InterActiveCorp
`(“IAC”), and no publicly held company other than
`IAC owns 10% or more of Vimeo’s stock. Vimeo, LLC,
`the entity originally named in the suit below, subse-
`quently converted into Vimeo, Inc. See Supplemental
`Corporate Disclosure Statement, Capitol Records,
`LLC v. Vimeo, LLC, No. 14-1048 (2d Cir.), ECF No. 265
`(May 13, 2016).
`Respondent Connected Ventures, LLC (“Connected
`Ventures”) is owned by IAC, and no publicly held com-
`pany other than IAC owns 10% or more of Connected
`Ventures’ stock. Connected Ventures was formerly,
`but is no longer, affiliated with Vimeo. See Pet. App.
`2a n.1.
`No publicly held company owns 10% or more of IAC’s
`stock.
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`QUESTION PRESENTED ..................................
`CORPORATE DISCLOSURE STATEMENT .....
`INTRODUCTION ................................................
`COUNTERSTATEMENT ....................................
`REASONS FOR DENYING THE WRIT ............
`I. THE PETITION DOES NOT WARRANT
`REVIEW ....................................................
`A. There Is No Conflict Warranting
`Review ..................................................
`B. The Petition Presents No Issue Of
`National
`Importance Warranting
`Review ..................................................
`II. THE DECISION BELOW IS CORRECT ...
`A. The Text And Structure Of The
`Statute Support The Court Of
`Appeals’ Interpretation .......................
`B. The Purpose Of The Statute Supports
`The Court Of Appeals’ Interpretation ...
`C. Section 301(c) Does Not Override
`Section 512(c) .......................................
`III. THIS CASE PRESENTS A POOR
`VEHICLE FOR RESOLVING THE
`QUESTION PRESENTED .......................
`CONCLUSION ....................................................
`
`Page
`
`i
`ii
`1
`3
`9
`
`9
`
`9
`
`10
`13
`
`13
`
`21
`
`22
`
`27
`29
`
`(iii)
`
`
`
`iv
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Abbott v. Veasey,
`No. 16-393, 580 U.S. ___ (2017) ................
`In re Aimster Copyright Litig.,
`334 F.3d 643 (7th Cir. 2003) .....................
`Almeida v. Amazon.com, Inc.,
`456 F.3d 1316 (11th Cir. 2006) .................
`Barnett Bank of Marion Cnty.,
`N.A. v. Nelson,
`517 U.S. 25 (1996) .....................................
`Burgess v. United States,
`553 U.S. 124 (2008) ...................................
`Chickasaw Nation v. United States,
`534 U.S. 84 (2001) .....................................
`Circuit City Stores, Inc. v. Adams,
`532 U.S. 105 (2001) ...................................
`Cmty. for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989) ...................................
`Columbia Pictures Indus., Inc. v. Fung,
`710 F.3d 1020 (9th Cir. 2013) ...................
`Commissioner v. Clark,
`489 U.S. 726 (1989) ...................................
`Dep’t of Homeland Sec. v. MacLean,
`135 S. Ct. 913 (2015) .................................
`Dorsey v. United States,
`132 S. Ct. 2321 (2012) ...............................
`EMI Christian Music Grp., Inc.
`v. MP3Tunes, LLC,
`844 F.3d 79 (2d Cir. 2016) ........................
`
`
`27
`
`11
`
`28
`
`24
`
`16
`
`24
`
`24
`
`14
`
`11
`
`27
`
`18
`
`23
`
`11
`
`
`
`v
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`14
`
`12
`
`10
`
`15
`
`26
`
`21
`
`Feltner v. Columbia Pictures
`Television, Inc.,
`523 U.S. 340 (1998) ...................................
`Firth v. New York,
`775 N.E.2d 463 (N.Y. 2002) ......................
`Flanagan v. Prudential-Bache Secs., Inc.,
`495 N.E.2d 345 (N.Y. 1986) ......................
`Flo & Eddie, Inc. v. Sirius XM Radio, Inc.,
`___ N.E.3d ___, 2016 N.Y. Slip Op. 08480
`(N.Y. Dec. 20, 2016) .................................. 12, 29
`Fortnightly Corp. v. United Artists
`Television, Inc.,
`392 U.S. 390 (1968) ...................................
`J.E.M. Ag Supply, Inc. v. Pioneer
`Hi-Bred Int’l, Inc.,
`534 U.S. 124 (2001) ...................................
`King v. Burwell,
`135 S. Ct. 2480 (2015) ...............................
`Kirtsaeng v. John Wiley & Sons, Inc.,
`133 S. Ct. 1351 (2013) ............................... 14, 19
`La. Pub. Serv. Comm’n v. FCC,
`476 U.S. 355 (1986) ...................................
`Lockhart v. United States,
`546 U.S. 142 (2005) ...................................
`Lunney v. Prodigy Servs. Co.,
`723 N.E.2d 539 (N.Y. 1999) ......................
`Microsoft Corp v. AT&T Corp.,
`550 U.S. 437 (2007) ...................................
`
`25
`
`24
`
`13
`
`22
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`26
`
`10
`
`27
`
`28
`
`23
`
`27
`
`Morton v. Mancari,
`417 U.S. 535 (1974) ...................................
`Mountain View Coach Lines, Inc. v. Storms,
`476 N.Y.S.2d 918
`(App. Div. 2d Dep’t 1984) ..........................
`Office of Senator Mark Dayton v. Hanson,
`550 U.S. 511 (2007) ...................................
`Patterson v. Shumate,
`504 U.S. 753 (1992) ....................... 14, 17, 20, 21
`Perfect 10, Inc. v. CCBill LLC,
`488 F.3d 1102 (9th Cir. 2007) ...................
`TVA v. Hill,
`437 U.S. 153 (1978) ...................................
`Tasini v. New York Times Co.,
`206 F.3d 161 (2d Cir. 2000), aff’d,
`533 U.S. 483 (2001) ...................................
`Teleprompter Corp. v. Columbia
`Broad. Sys., Inc.,
`415 U.S. 394 (1974) ................................... 9, 15
`UMG Recordings, Inc.
`v. Escape Media Grp., Inc.,
`964 N.Y.S.2d 106
`(App. Div. 1st Dep’t 2013) .........................
`United States v. Fausto,
`484 U.S. 439 (1988) ...................................
`United States v. Winstar Corp.,
`518 U.S. 839 (1996) ...................................
`
`10
`
`25
`
`23
`
`
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`United States Dep’t of Treasury v. Fabe,
`508 U.S. 491 (1993) ...................................
`Va. Military Inst. v. United States,
`113 S. Ct. 2431 (1993) ...............................
`
`24
`
`27
`
`STATUTES
`
`24
`15 U.S.C. § 1012(b) .......................................
`17 U.S.C. § 101 ................................... 7, 14, 16, 17
`17 U.S.C. § 102(a) .........................................
`17
`17 U.S.C. § 104(a) .........................................
`17
`17 U.S.C. § 104(b) .........................................
`17
`17 U.S.C. § 104(c) .........................................
`18
`17 U.S.C. § 105 .............................................
`17
`17 U.S.C. § 106 ................................... 9, 16, 17, 18
`17 U.S.C. § 109 ............................................. 14, 19
`17 U.S.C. § 113 .............................................
`18
`17 U.S.C. § 201(a) .........................................
`18
`17 U.S.C. § 201(d)(2) ....................................
`18
`17 U.S.C. § 203(b) .........................................
`18
`17 U.S.C. § 203(b)(5).....................................
`18
`17 U.S.C. § 301(c) ... 1, 5, 8, 21, 22, 23, 24, 25, 26, 27
`17 U.S.C. § 302(e) .........................................
`18
`17 U.S.C. § 304(c)(6) .....................................
`18
`17 U.S.C. § 405(c) .........................................
`18
`
`
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`18
`17 U.S.C. § 412 .............................................
`17 U.S.C. § 501(a) ..................................... 7, 15, 16
`17 U.S.C. § 512 ......................... 3, 6, 13, 19, 21, 22
`17 U.S.C. § 512(c) ........................................passim
`17 U.S.C. § 512(c)(1) .....................................
`4
`17 U.S.C. § 512(c)(1)(A)(i)-(iii)......................
`4
`17 U.S.C. § 512(c)(1)(C) ................................
`4
`17 U.S.C. § 512(c)(3) .....................................
`4
`17 U.S.C. § 512(h) .........................................
`19
`17 U.S.C. § 512(i)(1)(A) ................................
`4
`17 U.S.C. § 512(l) ..........................................
`19
`17 U.S.C. § 512(m) ........................................
`26
`17 U.S.C. § 512(m)(1) ................................... 4, 26
`17 U.S.C. § 602(a)(1).....................................
`18
`17 U.S.C. § 602(a)(2).....................................
`18
`17 U.S.C. § 701 .............................................
`18
`17 U.S.C. § 1001(7)(A) ..................................
`18
`17 U.S.C. § 1006(a)(1)(A) ..............................
`18
`17 U.S.C. § 1008 ...........................................
`18
`17 U.S.C. § 1101(d) .......................................
`21
`17 U.S.C. § 1201 ........................................... 19, 22
`17 U.S.C. § 1201(a)(1)(A) ..............................
`19
`17 U.S.C. § 1309 ...........................................
`16
`
`
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`28 U.S.C. § 1292(b) .......................................
`47 U.S.C. § 230 .............................................
`47 U.S.C. § 230(c)(1) .....................................
`47 U.S.C. § 230(e)(2) .....................................
`47 U.S.C. § 230(e)(3) .....................................
`Act of October 15, 1971, Pub. L. No. 92-
`140, 85 Stat. 391 .......................................
`Act of October 19, 1976, Pub. L. No. 94-
`553, 90 Stat. 2541 .....................................
`Act of October 27, 1988, Pub. L. No. 105-
`298, 112 Stat. 2827 ...................................
`
`27
`28
`28
`28
`28
`
`5
`
`5
`
`5
`
`OTHER AUTHORITIES
`
`DMCA (Copyright) Complaint to Google,
`LUMEN, http://lumendatabase.org/notices
`11
`/1358677# ..................................................
`H.R. Rep. No. 94-1476 (Sept. 3, 1976) ......... 5, 25
`S. Rep. 105-190 (May 11, 1998) ........... 3, 4, 21, 22
`Sup. Ct. R. 10(a) ...........................................
`9
`U.S. Copyright Office, Federal Copyright
`Protection for Pre-1972 Sound Record-
`ings (Dec. 2011) ..................... 5, 6, 13, 23, 25, 27
`
`
`
`
`
`INTRODUCTION
`The Court should deny review of the decision by
`the court of appeals holding that the “safe harbor”
`provided by the Digital Millennium Copyright Act
`(“DMCA”) under 17 U.S.C. § 512(c) (1998) applies to
`copyright infringement claims based on sound record-
`ings fixed before February 15, 1972. While such
`recordings are protected only under state law and not
`by the Copyright Act, see 17 U.S.C. § 301(c), a unani-
`mous panel of the Court of Appeals for the Second
`Circuit (Leval, J., joined by Hall and Lynch, JJ.)
`correctly determined that the DMCA’s safe-harbor
`limitations on liability for “infringement of copyright”
`extend to state-law as well as federal copyright claims.
`That decision does not conflict with any decision of
`this Court, any other circuit, or any highest state
`court. Nor will it have any of the overblown practical
`consequences petitioners assert.
`The plain language and structure of the DMCA safe-
`harbor provisions amply support the court of appeals’
`conclusion. Congress expressly applied the DMCA to
`all actions for “infringement of copyright,” a phrase
`that is naturally read to include actions under both
`federal and state law, including actions based upon
`pre-1972 recordings protected only by state law.
`Contrary to petitioners’ arguments, the Copyright Act
`nowhere defines the term “infringement of copyright”
`as “infringement of federal copyright.” Congress
`notably did not limit “infringement” in the safe-harbor
`provisions to infringement claims “under this title,”
`as it did elsewhere in the DMCA and Title 17. And
`17 U.S.C. § 512(c) does not conflict with a previously
`enacted provision exempting pre-1972 recordings from
`federal preemption, 17 U.S.C. § 301(c); if it does, the
`later provision expressly effects a partial repeal. The
`
`
`
`2
`report of the U.S. Copyright Office suggesting the
`contrary is entitled to no special deference in this
`straightforward matter of statutory construction.
`Were there any doubt about the correct construction
`of 17 U.S.C. § 512(c) based on textual language and
`structure, it is readily resolved by the DMCA’s
`purpose. Congress enacted the DMCA to protect copy-
`right holders from online piracy while encouraging the
`robust expansion of online services. The safe-harbor
`provisions serve the latter goal by relieving service
`providers of the crippling liability that would attach if
`they were strictly liable for every act of copyright
`infringement by their users. As the court of appeals
`correctly reasoned, it would make no sense for Con-
`gress to relieve service providers of the affirmative
`duty to monitor user uploads for songs by U2, Elvis
`Costello, Radiohead, Coldplay, Adele, Beyoncé and
`Norah Jones only to impose that same onerous burden
`sub silentio as to songs by “The Beatles, The Supremes,
`Elvis Presley, Aretha Franklin, Barbra Streisand, and
`Marvin Gaye.” Pet. App. 20a-21a.
`While petitioners paint a dire picture of rampant
`online copyright abuse if the decision below remains in
`place, they disregard the DMCA’s notice-and-takedown
`framework, which provides them an easy, effective and
`well-established way to remove infringing content.
`Under the stringent provisions of 17 U.S.C. § 512(c),
`service providers are subject to copyright infringement
`liability if they fail to act “expeditiously to remove”
`infringing material posted on their websites of which
`they receive notice or otherwise have actual or “red
`flag” knowledge. Petitioners offer no persuasive reason
`why that well-settled statutory regime does not work
`equally well for both pre- and post-1972 recordings. In
`fact, it is petitioners’ and not respondents’ approach
`
`
`
`3
`that would unsettle existing expectations. In reliance
`on the general applicability of the DMCA, many com-
`panies have made enormous investments in expanding
`broadband Internet access, developing Internet search
`engines and providing new Internet content delivery
`services. Petitioners’ proposed new exception to the
`DMCA safe harbors for the vast category of pre-1972
`recordings would impose potentially massive risk and
`cost that would jeopardize that investment.
`In any event, the decision below provides a poor
`vehicle to review the question presented. It was
`rendered on interlocutory appeal and does not address
`alternative state-law and federal grounds that could
`dispose of petitioners’ claims on remand. Moreover, a
`recent decision of the New York Court of Appeals casts
`doubt on petitioners’ claims even apart from the
`DMCA safe harbor.
`For all these reasons, the petition should be denied.
`
`COUNTERSTATEMENT
`1. The Digital Millennium Copyright Act is an
`omnibus law spanning five titles that made various
`changes to the copyright laws. S. Rep. 105-190 at
`8-9 (May 11, 1998). Title II, the Online Copyright
`Infringement Liability Limitation Act, establishes the
`online safe harbors at issue here, 17 U.S.C. § 512. See
`S. Rep. 105-190 at 19-21.
`Congress enacted the DMCA safe harbors to encour-
`age the growth of websites and other online services
`by providing “greater certainty” concerning “their legal
`exposure for infringements that may occur” in the
`course of “common activities,” such as hosting content
`uploaded by others that may contain infringing mate-
`rial of which the service providers are unaware. Id. at
`19-20. Congress recognized that, without such certainty,
`
`
`
`4
`service providers would hesitate to invest in and
`develop new and valuable Internet services. Id. at 8.
`The DMCA safe-harbor provisions prescribe in detail
`what service providers must do to avoid copyright
`liability for hosting third-party content. Central to
`this regime is a notice-and-takedown framework that
`enables copyright holders to obtain what is effectively
`an extrajudicial injunction against infringement. As
`relevant here, the safe harbor set forth in 17 U.S.C.
`§ 512(c) provides that “[a] service provider shall not be
`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.” Id. § 512(c)(1). Upon
`receipt of a notice of alleged infringement of copyright,
`a service provider must “expeditiously” remove the
`allegedly infringing materials. Id. §§ 512(c)(1)(C),
`512(c)(3). It must also expeditiously remove content if
`it has actual knowledge of infringement or becomes
`“aware of facts or circumstances from which infringing
`activity is apparent.” Id. §§ 512(c)(1)(A)(i)-(iii).1
`Although in certain circumstances a service provider
`may need to remove content without first receiving
`a notice, the DMCA expressly relieves it from the
`burden of affirmatively “monitoring its service or
`affirmatively seeking
`facts
`indicating
`infringing
`activity.” Id. § 512(m)(1).
`2. The dispute in this case stems from Congress’s
`amendments to the Copyright Act to cover sound
`recordings. In 1971, Congress added federal copyright
`
`1 In addition, a service provider must meet certain threshold
`criteria, for example by showing that it has adopted a policy
`to terminate the accounts of “repeat infringers.” 17 U.S.C.
`§ 512(i)(1)(A).
`
`
`
`5
`protection for “sound recordings fixed, published, and
`copyrighted” on or after February 15, 1972. Act of
`October 15, 1971, Pub. L. No. 92-140, 85 Stat. 391, 392.
`In 1976, Congress amended the Copyright Act to
`expressly preempt state-law rights in works protected
`by federal copyright law. Act of October 19, 1976, Pub.
`L. No. 94-553, 90 Stat. 2541. Concerned that such
`preemption might “be read as abrogating the anti-
`piracy laws now existing in 29 states,” Congress added
`a savings clause to “exclude sound recordings fixed
`prior to February 15, 1972 from the effect of the
`preemption” for 75 years. H.R. Rep. No. 94-1476 at
`133 (Sept. 3, 1976). Congress later extended this
`period by 20 years to mirror a term extension for
`federally protected works. Act of October 27, 1988,
`Pub. L. No. 105-298, § 102(a), 112 Stat. 2827. The
`resulting provision thus reads: “With respect to sound
`recordings fixed before February 15, 1972, any rights
`or remedies under the common law or statutes of any
`State shall not be annulled or limited by this title until
`February 15, 2067.” 17 U.S.C. § 301(c).
`3.
`In 2011, the U.S. Copyright Office issued a
`report titled Federal Copyright Protection for Pre-1972
`Sound Recordings (“Copyright Office Rep.”). The
`Office reviewed the state-law protections afforded
`these works—which range from criminal sanctions to
`common-law rights—and described them as “inconsistent
`and sometimes vague and difficult to discern,” “amor-
`phous,” and lacking in “clearly delineated exceptions.”
`Id. at 48. The Office noted that these deficiencies
`“mak[e] it hard for users to predict with assurance the
`range of activities that are permissible and those that
`are likely to result in liability” and thus “difficult to
`undertake multistate or nationwide activities” with
`respect to these older recordings. Id. at 48-49.
`
`
`
`6
`In light of these practical problems, the Copyright
`Office recommended that Congress “federalize” pre-
`1972 recordings. Although the Office took the view
`that the DMCA did not presently cover these works, it
`saw “no reason—and none has been offered—why the
`section 512 ‘safe harbor’ . . . should not apply to the use
`of pre-1972 sound recordings.” Id. at 130.
`4. Founded in 2004, Vimeo operates the Vimeo®
`online video-sharing service available through the
`website https://vimeo.com. Vimeo allows its users to
`upload and share original, creative videos that others
`can stream over the Internet, subject to Vimeo’s Terms
`of Service. Pet. App. 8a-9a, 75a-76a. As of 2012,
`Vimeo hosted more than 31 million videos and had
`12.3 million registered users in 49 countries, who
`collectively uploaded approximately 43,000 new videos
`per day. Pet. App. 8a-9a. With only a small group of
`employees dedicated to “community” support issues
`(16 employees as of 2012), Vimeo does not, and cannot,
`review each and every video that is uploaded per day.
`Pet. App. 9a, 48a.
`5.
`In 2009, in two complaints, petitioners sued
`Vimeo for infringement of their music copyrights
`based upon 199 videos uploaded by Vimeo users. Only
`the Universal Music Group-affiliated record compa-
`nies (Capitol Records, et al., see Pet. iii) claim
`infringement of sound recordings. The Sony Music-
`controlled music publishers (EMI Blackwood, et al.,
`see Pet. iii), whose separate lawsuit involves musical
`compositions and not sound recordings, lack standing
`to pursue the question presented in this petition.
`Vimeo sought summary judgment that safe harbor
`precluded petitioners’ claims, including their claims of
`state-law copyright infringement with respect to pre-
`1972 recordings. The district court, relying largely on
`
`
`
`7
`the Copyright Office Report, ruled that the DMCA safe
`harbors do not extend to pre-1972 recordings. Pet.
`App. 141a-142a. The court, however, granted Vimeo’s
`petition for interlocutory review of its ruling, finding
`that there existed substantial ground for difference of
`opinion on the issue. Pet. App. 63a-65a. The court of
`appeals accepted this certified question among several
`others.
`6.
`In a unanimous decision, the court of appeals
`vacated the district court’s grant of summary judg-
`ment to petitioners denying safe harbor to pre-1972
`recordings. Pet. App. 14a-27a. The court concluded
`that “the safe harbor established by § 512(c) protects a
`qualifying service provider from liability for infringe-
`ment of copyright under state law.” Pet. App. 27a.
`The court acknowledged the Copyright Office’s general
`expertise on the Copyright Act but rejected its statu-
`tory interpretation as a “misreading” that was owed no
`special deference. Pet. App. 18a; see Pet. App. 26a-
`27a.
`Instead, in a detailed analysis, the court of appeals
`held that “[a] literal and natural reading of the text
`of § 512(c) leads to the conclusion that its use of
`the phrase ‘infringement of copyright’ does include
`infringement of state laws of copyright.” Pet. App.
`19a. Noting (Pet. App. 18a-19a) that section 101 of
`the Copyright Act does not define “infringement
`of copyright,” the court rejected the argument that
`17 U.S.C. § 501(a), which provides that “[a]nyone who
`violates any of the exclusive rights of the copyright
`owner as provided by sections 106 through 122 . . . is
`an infringer of the copyright,” limits “infringement of
`copyright” only to federal copyrights. Pet. App. 19a
`(“To state that conduct x violates a law is not the same
`thing as saying that conduct x is the only conduct that
`
`
`
`8
`violates the law.”). Moreover, the court observed that
`Congress had omitted to qualify the phrase “infringe-
`ment of copyright” in section 512(c) with the phrase
`“under this title” as it had in other provisions across
`the Copyright Act, and thus had not limited the safe
`harbor’s scope to federal claims. Pet. App. 19a.
`The court of appeals found its reading of the plain
`text of the statute confirmed by the statutory purpose.
`Noting that Congress had intended both to protect
`copyright owners from online infringement and to
`make Internet services “economically feasible,” the
`court concluded that “[t]o construe § 512(c) as leaving
`service providers subject to liability under state
`copyright laws for postings by users of infringements
`of which the service providers were unaware would
`defeat the very purpose Congress sought to achieve in
`passing the statute.” Pet. App. 20a. Such a reading
`would either impose on service providers the “heavy
`costs of monitoring every posting” or create “crushing
`liabilities under state copyright laws.” Pet. App. 20a;
`see Pet. App. 26a (similar).
`The court of appeals likewise rejected any argument
`that its reading of section 512(c) would effect an
`impermissible implied repeal of section 301(c), holding
`that any “partial repeal of § 301(c)” was “not by impli-
`cation but by specific statement”—namely, “by the
`explicit statement in § 512(c) that ‘[a] service provider
`shall not be liable . . . for infringement of copyright.’”
`Pet. App. 25a.
`Petitioners filed a petition for en banc review, which
`was denied without dissent. Pet. App. 145a-147a.
`
`
`
`
`
`9
`REASONS FOR DENYING THE WRIT
`I. THE PETITION DOES NOT WARRANT
`REVIEW
`The decision below does not warrant this Court’s
`grant of certiorari. It does not conflict with any
`decision of this Court, any other federal court of
`appeals, or any state’s court of last resort. And it does
`not involve any important question of federal law
`warranting the Court’s immediate intervention.
`
`Is No Conflict Warranting
`
`A. There
`Review
`Petitioners do not assert that the court of appeals’
`decision conflicts with that of any other federal court
`of appeals. Nor could they, as no other court of appeals
`has decided the issue.
`The court of appeals’ decision also presents no
`conflict with a relevant decision of this Court, which
`has not previously addressed the DMCA’s safe harbors,
`much less the question presented. Petitioners’ attempt
`(Pet. 5, 28) to fashion a conflict based on a footnote in
`Teleprompter Corp. v. Columbia Broadcasting System,
`Inc., 415 U.S. 394, 398 n.2 (1974), is unavailing.
`Teleprompter had no occasion to consider whether
`“infringement of copyright” excluded state-law copy-
`right. Rather, the footnote in question merely confirmed
`that violation of rights specifically conferred by section
`1 of the Copyright Act of 1909 (analogous to section
`106 of the current statute) “constitutes copyright
`infringement under federal law.” Id.
`Finally, the court of appeals’ decision does not
`“conflict[] with a decision by a state court of last
`resort,” Sup. Ct. R. 10(a) (emphasis added), as no such
`court has addressed the question presented. Without
`
`
`
`10
`once mentioning this standard, petitioners represent
`the existence of a conflict between the court of appeals
`and “the New York courts,” Pet. 5 (emphasis added),
`by which petitioners mean a single, contrary decision
`of an intermediate appellate court. See UMG Recordings,
`Inc. v. Escape Media Grp., Inc., 964 N.Y.S.2d 106
`(App. Div. 1st Dep’t 2013). The New York Court of
`Appeals—New York’s court of last resort—has not yet
`addressed the issue and remains capable of correcting
`its lower court’s error in a future case.2
`
`B. The Petition Presents No Issue Of
`National Importance Warranting Review
`Petitioners greatly exaggerate (Pet. 20-23) the
`supposed harms the decision below will visit upon the
`music industry, as do their amici (RIAA Br. 13-19;
`ABKCO Br. 11-12). For nearly two decades, the
`DMCA’s notice-and-takedown provisions have afforded
`copyright holders an efficient, extrajudicial means
`of removing unauthorized copies online. Each year,
`right-holders send hundreds of thousands of takedown
`notices to service providers, resulting in the removal
`of millions of works without any court intervention.
`
`2 Indeed, the Second Circuit’s decision is binding upon all New
`York courts, including those in the First Department, as the New
`York Court of Appeals has held that state courts are “bound to
`apply [a federal] statute as interpreted by Supreme Court
`decision or, absent such, in accordance with the rule established
`by lower Federal courts if they are in agreement.” Flanagan v.
`Prudential-Bache Secs., Inc., 495 N.E.2d 345, 348 (N.Y. 1986).
`Because no federal court is in disagreement with the court of
`appeals’ decision, New York courts must apply it. And even if
`UMG Recordings binds the courts in the First Department, it
`does not bind that appellate court’s three sister departments,
`which remain “free to reach a contrary result.” Mountain View
`Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 920 (App. Div. 2d
`Dep’t 1984) (disagreeing with Third Department).
`
`
`
`11
`Indeed, petitioners themselves have, directly and
`through industry associations like amicus Recording
`Industry Association of America, used the DMCA’s
`notice-and-takedown procedures to remove pre-1972
`recordings.3 Given this usage, it is difficult to credit
`any assertion (e.g., RIAA Br. 13-19) that the court of
`appeals’ decision “upends” copyright law.
`Accordingly, the DMCA is not the “one-sided”
`bargain (ABKCO Br. 14) that petitioners and their
`amici depict. Moreover, under the DMCA’s exacting
`compliance requirements, safe harbor is unavailable
`to any providers (like peer-to-peer file-sharing services)
`whose very purpose is to facilitate online infringe-
`ment.4
`Petitioners further err in contending (Pet. 21) that
`the decision below limits or annuls any substantive
`right held by holders of copyright in pre-1972
`recordings. Whatever state-law rights and remedies
`they had for such recordings before the DMCA was
`
`3 See, e.g., DMCA (Copyright) Complaint to Google, LUMEN,
`http://lumendatabase.org/notices/1358677# (RIAA claim nos.
`229-364 for 1960s Beach Boys recordings).
`4 See, e.g., EMI Christian Music Grp., Inc. v. MP3Tunes, LLC,
`844 F.3d 79, 90 (2d Cir. 2016) (no safe harbor where defendant
`“did not even try to connect known infringing activity of which it
`became aware through takedown notices” and “executives were
`encouraged to and did personally [copy] songs from blatantly
`infringing websites”); Columbia Pictures Indus., Inc. v. Fung, 710
`F.3d 1020, 1043 (9th Cir. 2013) (no safe harbor where defendant
`“actively encourag[ed] infringement[] by urging his users to both
`upload and download particular copyrighted works” and did so
`himself); In re Aimster Copyright Litig., 334 F.3d 643, 655
`(7th Cir. 2003) (no safe harbor where, “[f]ar from doing anything
`to discourage repeat infringers of the plaintiffs’ copyrights,
`Aimster invited them to do so [and] showed them how they could
`do so with ease using its [encryption] system”).
`
`
`
`12
`enacted, they continue to have post-enactment.
`Indeed, the DMCA expands the benefits available to
`holders of copyright in pre-1972 recordings by giving
`them the ability to obtain an extrajudicial remedy
`merely by submitting a DMCA notice to a service
`provider, who must comply in order to retain safe
`harbor.
`At most, the decision precludes a state-law damages
`action against a DMCA-compliant service provider that
`unknowingly hosts user-generated materials containing
`pre-1972 recordings. But petitioners presuppose with-
`out establishing that any such strict-liability cause of
`action actually exists under state law. The New York
`Court of Appeals has never endorsed a common-law
`claim for contributory copyright infringement. And
`contrary to petitioners’ suggestion (Pet 22-23), pre-
`1972 recordings have not gained expansive protection
`in state courts. In Flo & Eddie, Inc. v. Sirius XM
`Radio, Inc., ___ N.E.3d ___, 2016 N.Y. Slip Op. 08480,
`available at 2016 WL 7349183 (N.Y. Dec. 20, 2016), for
`example, the New York Court of Appeals declined to
`recognize a right to public performance in pre-1972
`recordings in light of the “far-reaching” consequences
`of doing so and the “competing interests at stake.”
`Id. at *13. That court also observed that expanded
`protection for pre-1972 recording owners is
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