EMI Christian Music Group, Inc. v. MP3tunes, L.L.C.
844 F.3d 79 (2016)
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Rule of Law:
Under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(i), the term 'repeat infringer' is not limited to users who knowingly upload and publicly distribute copyrighted material, but also includes users who repeatedly download or copy infringing material for personal use. A service provider fails to 'reasonably implement' a termination policy if it possesses information linking infringing activity to specific users but fails to act on it.
Facts:
- In 2005, Michael Robertson, who had previously run the infringing music site MP3.com, founded MP3tunes, LLC.
- MP3tunes operated two internet services: MP3tunes.com, a personal music 'locker' service, and sideload.com, a service that allowed users to search for free music online and 'sideload' it directly into their MP3tunes lockers.
- Songs that users sideloaded were added to sideload.com's public index, making them available for other users to stream, download, or sideload.
- MP3tunes encouraged users to sideload songs, including through a 'Sideload Hall of Fame,' and storage for sideloaded songs did not count against users' free storage limits, driving traffic to the paid locker service.
- MP3tunes executives, including Robertson, personally sideloaded songs from websites that appeared to contain 'pirated music' and encouraged employees to do the same to expand the sideload.com index.
- Robertson was aware that major record labels had not authorized the distribution of their music in MP3 format before 2007.
- Robertson also knew that The Beatles had not authorized their songs to be available digitally prior to 2010.
- When users uploaded songs, MP3tunes's software automatically located and copied album cover art from Amazon.com onto its own servers, in violation of its agreements with Amazon.
Procedural Posture:
- A group of record companies and music publishers sued MP3tunes, LLC and its founder Michael Robertson for copyright infringement in the U.S. District Court for the Southern District of New York.
- On cross-motions for summary judgment, the District Court granted partial summary judgment to the defendants, finding that MP3tunes qualified for DMCA safe harbor protection because it had a reasonably implemented repeat infringer policy.
- Following the Second Circuit's decision in Viacom v. YouTube, the District Court partially reconsidered its ruling, holding that whether MP3tunes had 'red-flag knowledge' of or was 'willfully blind' to infringement was a question of fact for a jury.
- The case proceeded to trial, and a jury returned a verdict in favor of the plaintiffs, awarding approximately $48 million.
- The defendants filed a motion for judgment as a matter of law, which the District Court partially granted, overturning the jury's verdict on willful blindness and red-flag knowledge as to certain categories of songs.
- The plaintiffs appealed the District Court's summary judgment ruling on the repeat infringer policy and its judgment as a matter of law. The defendants (Robertson) cross-appealed other rulings to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a service provider fail to 'reasonably implement' a policy against 'repeat infringers' under the DMCA, 17 U.S.C. § 512(i), if it defines 'infringer' to only include users who knowingly upload and share content, while ignoring users who repeatedly download or 'sideload' infringing material for personal use?
Opinions:
Majority - Lohier, J.
Yes. A service provider fails to reasonably implement a repeat infringer policy if it adopts an unjustifiably narrow definition of 'infringer.' The court rejected the district court’s definition of a 'repeat infringer,' which was limited to users who knowingly upload content for public distribution. The term 'infringer' under copyright law does not require knowledge or intent, as copyright infringement is a strict liability offense. Therefore, a user who repeatedly downloads or sideloads infringing content for personal use qualifies as an infringer under the DMCA. The legislative history and statutory structure of the DMCA support this broader interpretation, as linking the safe harbor to a user's subjective knowledge would improperly burden service providers and contradict the statute's provision against an affirmative duty to monitor. Because MP3tunes received takedown notices identifying infringing links and had the ability to connect those links to users who repeatedly sideloaded them, a reasonable jury could find that its failure to do so meant it did not 'reasonably implement' its policy. The court further held that there was sufficient evidence for a jury to find MP3tunes had 'red-flag knowledge' of or was 'willfully blind' to infringement of pre-2007 major label MP3s and Beatles songs, given Robertson's admissions that he knew such content was not legally available online.
Analysis:
This decision significantly clarifies and strengthens the 'repeat infringer' provision of the DMCA safe harbor. By rejecting a narrow, intent-based definition of 'infringer,' the court broadened the category of users that service providers must police, including those who merely download for personal use. This puts a greater onus on service providers to use the information they receive, such as takedown notices, to identify and terminate all types of repeat infringers. The ruling makes it more difficult for services that facilitate or tolerate infringement to hide behind the safe harbor by adopting a policy that is narrow in scope or lax in enforcement, thereby increasing their potential liability.
