![]() Based on this interpretation, the District Court determined MP3tunes was eligible for safe harbor protection as long as the other statutory requirements were satisfied.ĮMI appealed and the Second Circuit appellate court reversed finding there was sufficient evidence to allow a reasonable jury to conclude that MP3tunes had red-flag knowledge of, or was willfully blind to, infringing activity involving those categories of protected material, and therefore, could not invoke DMCA safe harbor protections. The court concluded that repeat infringers were “blatant infringers” and that only users who knowingly uploaded infringing content could be classified as such. Additionally, the court looked to the 153 users that MP3tunes did terminate for sharing illegal music as evidence of the implementation of a reasonable repeat infringer policy. ![]() The court reasoned that users who sideloaded music for personal use did not constitute repeat infringers because they did not know whether the music was infringing or not. The district court, however, sided with defendant and held that MP3tunes was generally eligible for DMCA safe harbor protection. EMI claimed that as a result of MP3tunes’ failure to terminate users that had sideloaded infringing music from unauthorized websites, MP3tunes had failed to execute an adequate repeat infringer policy. In the suit, EMI claimed MP3tunes was not eligible for DMCA safe harbor because it (1) failed to reasonably implement a repeat-infringer policy by not identifying users who had sideloaded works identified in takedown notices (2) failed to act expeditiously to remove the sideloaded works identified in takedown notices (3) ignored red flags of widespread infringement and (4) controlled and benefitted from the infringing activity. 2002) (Section 512 does not endorse business practices that “would encourage content providers to turn a blind eye to the source of massive copyright infringement while continuing to knowingly profit, indirectly or not, from every single one of these same sources until a court orders the provider to terminate each individual account”). if the service provider failed to respond when it had knowledge of the infringement.”) Perfect 10, Inc. The DMCA safe harbors shield online service providers from liability only if they implement policies for terminating users who are “repeat infringers”, comply with takedown notices, not have actual or “red flag” knowledge of infringement, and not directly benefit from infringement when the provider has control over the infringing activity. As the Capitol Records Court observed, “he purpose of subsection 512(i) is to deny protection to websites that tolerate users who flagrantly disrespect copyrights.” 821 F. As a threshold matter, to be eligible for safe harbor, “a service provider must (i) adopt a policy that provides for the termination of service access for repeat infringers (ii) inform users of the service policy and (iii) implement the policy in a reasonable manner.” See 17 U.S.C. ![]() One of the main contested issues was whether MP3tunes was eligible for safe harbor protection under the Digital Millennium Copyright Act (DMCA). Due to infringed material, various record label publishing houses (EMI Music Group and fourteen other record companies, collectively, “EMI”) sued Robertson and his website MP3tunes for copyright infringement. The songs stored on MP3tunes were then added to Sideload’s index of searchable songs, which were made available to other users. MP3tunes enabled users to store music on a cloud-based server and Sideload enabled users to search for free music online and directly upload the songs to MP3tunes’ digital storage lockers. Michael Robertson, the founder of MP3tunes LLC, operated two websites: (“MP3tunes”) and (“Sideload”). In the cloud-based age where numerous tech giants such as Google, Amazon, and Apple have launched cloud music services, many kept abreast of ongoing legal battles over online service providers’ liability for users’ music copyright infringement offenses using their platforms and what internet service providers must do to avoid contributory infringement liability. ![]()
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