District Court Rules that DMCA Safe Harbors Apply to Cloud-Storage Music Locker Service Liable for Indirect Infringement
By Andrew Crocker – Edited by Jonathan Allred
Capitol Records, Inc. v. MP3tunes, LLC, 07 Civ. 9931 (S.D.N.Y. Aug. 22, 2011)
The United States District Court for the Southern District of New York ruled on competing motions for summary judgment in a copyright infringement case brought by EMI, Inc. against cloud-storage locker service MP3tunes and its executive Michael Robertson. The court granted EMI’s motion for summary judgment of contributory infringement against MP3tunes for not removing specific infringing material from users’ accounts and direct infringement against Robertson for personally downloading infringing material, while granting in part MP3tunes’ motion for summary judgment on its entitlement to safe harbors under the Digital Millennium Copyright Act of 1998 (“DMCA”).
The court ruled that MP3tunes had satisfied the threshold requirement for safe harbors granted to service providers in the DMCA by establishing a policy for dealing with repeat infringers among other requirements, but it found that MP3tunes had not done enough to respond to takedown notices from EMI regarding MP3tunes users’ infringement. MP3tunes’ locker service allows users to upload music from their personal collections and play these songs back from any computer. MP3tunes also operates sideload.com, a website (and an accompanying web plugin) that allows users to search for new music and “sideload” it directly to their locker for storage and playback. Sideload.com also aggregates music sideloaded by users, serving as a resource for discovering new music. When MP3tunes received EMI’s takedown notice, it removed links to the infringing content from sideload.com, but it did not delete songs that had been sideloaded from these links to individual user accounts. Relying heavily on precedent from Viacom v. YouTube, 718 F. Supp. 2d. 514 (S.D.N.Y. 2010), which was previously covered by the Digest, the court held that although MP3tunes was obligated to remove only those copyrighted works that were described with sufficient precision in EMI’s takedown notice, it should have removed copies of these works from users’ accounts as well. As a result, the court ruled that EMI was entitled to summary judgment on the claim that MP3tunes was liable for contributory infringement for these specific works.
Eric Goldman’s Technology & Marketing Law Blog provides an overview of the case. The Washington Post and the New York Times both agree that the court’s application of DMCA safe harbors to MP3tunes’ service will be welcome news to Apple, Amazon, and Google, all of whom have recently introduced cloud music storage locker services.
In addition to reaffirming the test for meeting DMCA safe harbor requirements articulated in the Viacom case, the decision appears to have broken new ground with regard to the way in which music is stored on MP3tunes’ servers and its effect on public performance rights, according to the Electronic Frontier Foundation (“EFF”). MP3tunes uses an algorithm to identify and “fingerprint” songs, and if a user uploads a digitally identical song that has already been stored by another user, MP3tunes does not create a duplicate copy on its servers. EMI had argued that this constituted rebroadcasting of “master copies” of songs in violation of the standard articulated in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), previously reported by the Digest. The court rejected this argument because MP3tunes’ algorithm only considers songs with the exact same bit sequence to be identical. Accordingly, “there is no ‘master copy’ of any of EMI’s songs stored on MP3tunes’ computer servers.”
Further, unlike the technology in Cartoon Network, MP3tunes’ “automatic and passive” playback software “is precisely the type of system routinely protected by the DMCA safe harbor.” EFF applauds the court for appearing to bless the use of “de-duplicating” algorithms, which it argues will allow cloud storage services to flourish without taking wasteful precautionary measures such as duplicating copies of the same song (which Google and Amazon do) or signing expensive licenses with the record industry (which Apple does). Wired argues that the decision’s treatment of DMCA safe harbors for sideload.com may particularly benefit Google, which could “pair up” its search engine and its locker service, giving users a more seamless way of browsing for new music online.
Andrew Crocker is a 2L at Harvard Law School.