US appeals court revisits ‘safe harbor’

November 2016

Internet, record music, music publishing


A U.S. appeals court has agreed that former members of the EMI Group can pursue additional copyright infringement claims in a long-running lawsuit over defunct online music storage firm MP3tunes. In rejecting an appeal by MP3tunes founder Michael Robertson, who was ordered to pay $12.2 million after a federal jury in 2014 found him liable for copyright infringement, the 2nd U.S. Circuit Court of Appeals in New York revisited the ruling by  U.S. District Judge William Pauley that MP3tunes was eligible for safe harbor protection under the Digital Millennium Copyright Act by meeting a requirement that service providers adopt and implement a policy for terminating repeat infringers: Pauley had narrowly defined “repeat infringer” to cover only those users who upload infringing content, rather than ones who downloaded songs for personal entertainment. “In the context of this case, all it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use,” U.S. Circuit Judge Raymond Lohier wrote saying that the trial judge’s view that only “blatant infringers” need to be subject to banning doesn’t match with the text, structure or legislative history of the DMCA. Whilst MP3Tunes terminated 153 users who shared passwords to address Lohier says “Based on the available evidence, a reasonable jury could have concluded that it was reasonable for MP3tunes to track users who repeatedly created links to infringing content in the index or who copied files from those links”.


DMCA safe harbor provisions don’t apply to service providers with either actual knowledge of infringing material or an awareness of “facts or circumstances from which infringing activity is apparent.” The appellate court here gave a wider definition what what the lathter might cover saying that the evidence “showed that MP3tunes and Robertson knew that major music labels generally had not even authorized their music to be distributed in the format most widely available on, let alone authorized it to be shared on the internet. In particular, Robertson apparently knew that major record labels had not offered songs in MP3 format until 2007. … With respect to MP3s sideloaded before 2007, therefore, the jury reasonably could have concluded that MP3tunes and Robertson were aware of ‘facts and circumstances that make infringement obvious.’”


The court also reversed a ruling dismissing claims that MP3tunes permitted copyright infringement for pre2007 MP3s and Beatles songs. The 2nd Circuit rejected Robertson’s own appeal, saying “the evidence showed that Robertson acted in a manner intended to promote infringement.”


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