No “Safe Harbor” in DMCA for Repeat Copyright Infringers

An early cloud service for the storing and sharing of MP3s was led by a CEO who knowingly encouraged his employees to copy and share copyrighted material, infringing the rights of a major record label and violating the “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), a three-judge appellate panel ruled last week.

Record companies that were previously part of EMI Group have been granted the legal green light to try and win additional copyright infringement claims against, the latest development in a longstanding lawsuit against the now-defunct storage firm.

Not familiar with MP3Tunes? That might not be surprising: It went under several years ago.

In 2005, the website was founded as a way to sell and distribute songs from independent artists but within a few years became one of the first music-related websites offering cloud-based storage services. By 2007, MP3Tunes had drawn the attention, and ire, of EMI Group, which filed a lawsuit claiming the website and an affiliated site,, were in violation of the company’s copyrights for the music being stored and sold. After EMI’s holdings were divvied up – with Universal Music Group buying EMI’s recording holdings and Sony Corp taking the publishing business—a jury in 2014 determined MP3Tunes was liable of infringement and awarded the former EMI divisions some $48.1 million, later reduced to $12.2 to be paid by MP3Tunes founder Michael Robertson, The Daily Mail recapped.

Last week, a three-judge panel in the 2nd Circuit Court of Appeals in New York overturned the original decision, ruling instead that Robertson was, in fact, a “repeat infringer” and could therefore be held responsible for further damages from Universal and Sony.

“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,” one of the judges, Raymond Lohier, wrote in the decision. The panel further found that Robertson was intentional aiming to “promote infringement” through his services.

As noted by ARS Technica, the judges essentially found the previous ruling was too lenient on Robertson in finding that the DMCA’s “safe harbor” provisions protected his services.

“The DMCA provides a safe harbor from copyright lawsuits for websites that follow certain guidelines and assist copyright owners in stopping infringement,” Joe Mullin explains. “That includes having polices that terminate ‘repeat infringers,’ which MP3Tunes did more than 150 times. EMI lawyers said that Robertson blew off other obvious infringers, but on that issue, the district court judge sided with Robertson, holding that users who used the website’s ‘’ search engine to hunt for freely available MP3 files ‘for their personal entertainment’ couldn’t be repeat infringers.”

In his decision, Lohier said all it takes to be a repeat infringer is repeated copying or accessing copyrighted material for private use. “The legislative history of the DMCA indicates that a ‘repeat infringer’ does not need to know of the infringing nature of its online activities, or to upload rather than download content.”

They added: “Robertson personally encouraged his employees to ‘sideload’ songs to add to the index. Many of those songs were from sites that contained ‘pirated material.’ The entire point of sideloading to the index was to make more music available for user download—even though Robertson knew the music was generally not available for free in MP3 form.”

While attorneys for Robertson declined to comment, Andrew Bart, a lawyer for Sony and Universal, said his clients are “gratified” by the court’s decision. “Significantly, the court agreed with our position that an ISP forfeits its DMCA safe harbor protections when it is willfully blind to repeat infringement, including by failing to track users who upload or copy infringing files identified on takedown notices.”

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

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