EMI Asks Judge to Reverse ‘Repeat Infringer’ Finding in MP3tunes Win
A federal judge jumped the gun in deciding that MP3tunes adequately implemented a “repeat infringer” policy to qualify for safe harbor under the Digital Millennium Copyright Act (WID Aug 24 p1), EMI told the U.S. District Court in New York. The label asked Judge William Pauley to reconsider that finding and also Pauley’s assertion in a footnote that the “plain language” of the DMCA showed that the law applies to pre-1972 sound recordings, despite the federal Copyright Act’s explicit exemption of such songs, which fall under various state laws. Pauley’s finding on pre-1972 recordings had been seen by some as a boon to Grooveshark, which is facing an infringement lawsuit from Universal Music Group over pre-1972 recordings (WID Aug 29 p5).
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MP3tunes didn’t allege that it banned anyone for repeat infringement until its motion for summary judgment, and even then the declaration from CEO Michael Robertson didn’t claim that the 153 accounts were terminated because of suspected infringement, EMI said. Robertson -- whose personal assets were also targeted by EMI -- had “substantial motive to contradict his employees,” who uniformly testified that they had never been instructed to track instances of infringement or terminate user accounts suspected of infringing, the label said. Yet Robertson could only identify two situations in which MP3tunes terminates accounts -- “when a user disseminated a hate message and when a user violated MP3tunes terms of use by sharing passwords” -- which suggests MP3tunes acted only in its “business interests,” not concerns over infringement, EMI said.
The music service also repeatedly claimed it couldn’t identify the reason for any termination, only which accounts had been closed, EMI said. Yet EMI offered evidence from MP3tunes’ own data that nearly 700 users had copied works subject to two takedown notices, and more than 100 more did so on three notices -- none of whose accounts were terminated, the label said. By treating as fact the motion for summary judgment’s claim that 153 accounts were terminated based on MP3tunes’ repeat-infringer policy, Pauley improperly removed from consideration what should have been a “triable issue of fact,” EMI said. Robertson’s declaration was “intentionally vague,” only saying MP3tunes users “could” be warned for “improper use” of the service, including infringement. “The law is clear that a witness who disclaimed knowledge or recollection of facts at a deposition cannot create an issue of fact on summary judgment by submitting a declaration purporting to testify to those facts,” EMI said.
The label also scolded the judge for his “misunderstanding about the nature of sideloading” -- a term coined by MP3tunes to refer to music that is hosted elsewhere and linked to a user’s music “locker” on the service. MP3tunes works in tandem with Robertson’s Sideload.com, which lets users scour the Web for music, some of it posted by labels themselves for promotional purposes. Pauley had said MP3tunes couldn’t be held liable for users who “merely consume” such music but don’t upload it. “To the contrary, identically to uploading, sideloading results in an unauthorized reproduction onto MP3tunes’ servers, which is clearly an act of copyright infringement,” EMI said. The judge “misapplied” the findings in four cases that largely absolved from liability YouTube, Veoh and Amazon -- all streaming services in which viewers merely consumed content but didn’t copy it. Pauley also made a “clear error” by saying users “do not know for certain” the copyright status of the music they are sideloading, EMI said: “Knowledge” has no bearing on liability for infringement in the 2nd U.S. Circuit Court of Appeals, which includes the New York court.
The Supreme Court, 2nd Circuit and New York Court of Appeals “are all in agreement that federal law has no impact” on pre-1972 recordings, EMI said, arguing with Pauley’s finding that the DMCA covers the pre-1972 recordings in the case. New York common law has protected those songs for over 100 years, and Section 301 of the Copyright Act makes explicit that federal law can’t limit or change those state-level protections until 2067, EMI said. “Indeed, in the very same month that Congress passed the safe harbor protections” in the DMCA’s Section 512 -- which are explicitly identified as “limitations” to liability -- it also extended “the period of exclusive state law protection” for pre-1972 recordings. Even without Section 301, Section 512 wouldn’t apply to the pre-1972 songs because the federal law defines infringement as violating exclusive rights in the Copyright Act, not those provided under state law, EMI said. “Nothing in Section 512 directly conflicts” with Section 301 except under Pauley’s interpretation of the DMCA’s reach prior to 1972.
The label will have a chance to argue its case with another judge in the court. Magistrate Judge Frank Maas told EMI in a subsequent order to call him on Sept. 27 for a telephone conference.