It's been many, many years since EMI started its ridiculous lawsuit against Michael Robertson and MP3Tunes
, concerning a variety of factors with MP3Tunes and the concept of online music lockers. Someone told me that a final ruling was to be expected last November, but it only just came down and it's mostly good news. You can read the full filing here
(pdf) or see it embedded below. The details of the case are a bit involved, but MP3Tunes is basically a music locker, similar to Google or Amazon's music locker/streaming player. Where it got a little complicated was that MP3Tunes also offered "Sideload.com" which allowed you to move MP3s found on the web into your music locker, so long as you could point it to a URL.
EMI argued that the company was not protected by DMCA safe harbors, claiming that it "purposely blinded itself to its users' infringement and failed to take any action against hundreds of users who sideloaded copies of songs identified" by EMI as infringing. But the court rejected that. It noted that the company "tracks the source and web address of every sideloaded song in its users' lockers and can terminate the account of a repeat infringer." Furthermore, the company did, in fact, terminate 153 accounts. Thus, the court says that MP3Tunes clearly qualifies for DMCA safe harbors. This is a good ruling and another useful DMCA win.
The court also, importantly, notes that many people sideloading content have no idea if it's authorized or not, and that it would be improper to treat them all as "blatant" infringers, especially since it's just for personal use:
The record reveals that MP3tunes's users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they are downloading violates the copyrights of others.
Separately, there's an important win hidden in a footnote, in that the court ruled that pre-1972 recordings qualify for DMCA safe harbors. As you may recall, we've spoken a few times about how pre-1972 recording are generally covered by state law, rather than federal copyright law (which is why many may not hit the public domain for much longer). EMI tried to argue that pre-1972 rulings don't qualify at all for DMCA safe harbors, but the court rejected that outright, noting the "plain meaning of the statutory language."
Where EMI did score a victory is in asserting that when it sent DMCA takedown notices over links from Sideload.com, MP3Tunes should also
then have to reach into users' storage lockers and delete the associated songs. I'm not sure how this fits with the statute, but the court argues that because MP3Tunes has this information (when you sideload a song to your locker, it records where it came from), it should, in fact delete them from users' lockers. Even here, EMI's legal claim tried to stretch too far. It argued beyond just the specific notices, MP3Tunes should delete "all EMI content." The court disabused the label of that notion:
EMI's argument misconstrues the DMCA and applicable case law. Even assuming the representative lists properly identified EMI's copyrighted works, EMI had to provide sufficient information--namely, additional web addresses--for MP3tunes to locate other infringing material.... EMI's notifications provided only enough information for MP3tunes to remove the noticed websites from Sideload.com and to find and remove copies of songs sideloaded from those websites. They did not identify the location of additional infringing material, let alone all of EMI's copyrighted works. Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers.
Another important rejection for EMI. It tried to use the infamous "red flag" knowledge aspect of the DMCA against MP3Tunes, saying that execs for the site itself uploaded works from "obviously infringing sites." The court notes that EMI's definition of "obviously infringing sites" is quite different than what he law suggests:
For instance, the websites rapidshare.com, fileden.com, and filefactory.com, as well as other sites used by MP3tunes executives to sideload songs do not use the words "pirate" or "bootleg" or other slang to indicate their illegal purpose and they are not otherwise clearly infringing. They are simply popular file sharing sites.
That's interesting given how frequently industry types love to insist that such sites "obviously infringe." Turns out a federal court disagrees. Thus, the court rejected red flag knowledge, noting that while some "investigation" may have turned up that such things were infringing, "if investigation is required to determine whether material is infringing, then those facts are not 'red flags.'" That's going to put on ice an awful lot of cases where the entertainment industry claims "red flag" DMCA violations.
The court also rejects the terms "free," "mp3" or "file sharing" are indicative of infringement, noting that "those terms are ubiquitous among legitimate sites offering legitimate services." In fact, as Robertson demonstrated
via a crowdsourcing effort, EMI itself "regularly distributes works on the internet for free" (something it denied earlier). However, this undermines EMI's case:
Because of these activities, EMI's executives concede that internet users, including MP3tunes' users and executives, have no way of knowing for sure whether free songs on the internet are unauthorized.
That line alone could be important, given how often the industry insists that people "just know" what's infringing. The court recognizes, correctly, that it's not so easy.
Furthermore, and contrary to the claims
of some who do not understand the law, the court notes that just because you receive DMCA notices, it does not establish that you have specific "red flag" knowledge of specific
Next up, we have another really important point that has been an issue in multiple cases. The question of financial benefit. Many people -- including the Department of Justice in the Rojadirecta case -- like to claim that because infringing activity on a website draws more traffic, they have proven that the site "profits from infringement." As we've explained over and over again, this is not accurate. The rule is that they have to profit directly from the infringement, not indirectly from traffic from the infringement. Once again, the court agrees with us, and not the copyright maximalists:
However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users. Moreover, MP3tunes did not promote infringement. Rather, it removed infringing links... and terminated the accounts of users who blatantly shared copyright files with others.
That line may be death for some of the lawsuits against cyberlockers out there, which all seem to assume that traffic = profiting from infringement. While this ruling may not be applicable in other jurisdictions yet, you can bet lawyers will be pointing to it, and hopefully other judges will understand this key point.
EMI then scores again in the contributory infringement claim, based on the same reasoning above, in that MP3tunes refused to remove files from lockers if they were sideloaded from sources later deemed infringing by EMI. Separately, since EMI sued Michael Robertson personally (rather than just the company), the court notes that he's liable for direct infringement of infringing songs that he sideloaded.
There are a few other side issues as well, but generally speaking, this is a big victory for MP3tunes and the safe harbors of the DMCA. It is likely that there will be appeals (perhaps on both sides), so this is far from over in an already excessively long legal dispute. But this ruling is mostly good news.