EMI v MP3 case judge clarifies his position

December 2011

Record labels, internet

The judge who oversaw EMI’s litigation against Michael Robertson and his MP3tunes.com service has responded to EMI’s response it submitted to his original ruling where he held that operating (or using) an MP3 locker wasn’t in itself an infringement of copyright and that MP3’s services were covered by the DCMA’s safe harbour provisions, providing MP3tunes.com operated a takedown system, blocking uses from sharing links to unlicensed content whenever a copyright owner complained although  Judge William Pauley was critical about the way MP3tunes.com’s takedown system operated, and of the fact Robertson himself had posted links to clearly unlicensed content.  EMI responded by asking the judge to reconsider some points, where the company argued he had got it wrong, and also to consider more fully what the deal was with pre-1972 recordings which are covered by state laws rather than federal law, and therefore arguably not subject to the DMCA safe harbor provisions.

Pauley’s response rejects all of the major’s criticisms. On the pre-1972 issue, Judge Pauley says the safe harbor principles of the DMCA apply to all copyright works in America, oblivious of age, and even when the copyright protection comes from state and not federal law.  According to Techdirt, the judge wrote: “Limiting the DMCA to recordings after 1972, while excluding recordings before 1972, would spawn legal uncertainty and subject otherwise innocent internet service providers to liability for the acts of third parties. After all, it is not always evident (let alone discernible) whether a song was recorded before or after 1972. The plain meaning of the DMCA’s safe harbours, read in light of their purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to 15 Feb 1972”. CMU Daily report that not only do Pauley’s clarifications make it much harder for EMI to appeal, should they wish to but, perhaps more importantly, they also throw into doubt Universal’s strategy for combating Grooveshark through the courts.


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