Yesterday, a federal judge ruled that MP3tunes — a “locker”-style music service that came under fire from record company EMI — qualifies for “safe harbor” under the Digital Millennium Copyright Act (DMCA).
Passed in 1998, the DMCA was an attempt by Congress to strike a balance between allowing innovation and protecting rightsholders. One of its more significant provisions is the “safe harbor” for internet service providers. This part of the DMCA shields certain services from infringement, provided they comply with the notice-and-takedown procedures outlined in the legislation. Of course, with most things at the intersection of technology and law, it’s not quite that simple. Over the last decade, there have been several court cases where the protections afforded to services came under intense scrutiny. Some of these cases are still winding their way through the courts.
The most recent ruling comes from U.S. District Judge William Pauley, who issued a 29-page opinion about whether MP3tunes can continue to operate its service. The decision is mostly good news for MP3tunes founder Michael Robertson, who is no stranger to high-stakes litigation involving the major record labels. (Universal Music Group effectively shuttered Robertson’s former enterprise, MP3.com, back in 2000).
The recent MP3tunes case hinged on whether Robertson and co. had knowledge of specific incidents of infringement, and whether the company took action to remove infringing material in compliance with the DMCA. It’s a pretty complex case; legal nerds can check out the opinion here.
EMI claimed that MP3tunes had control over its servers and the songs uploaded and downloaded by its customers, meaning, they were able to remove or block access to offending content. Again, protection under the DMCA depends on whether a service provider can control infringing behavior. In this case, it was a question about the third-party links on MP3unes sister service, Sideload.com. The judge didn’t mince words about the DMCA’s notice-and-takedown policy: “While a reasonable person might conclude after some investigation that the websites used by MP3tunes executives were not authorized to distribute EMI’s copyrighted works, the DMCA does not place the burden of investigation on the Internet service provider,” Pauley wrote in his opinion. Which is a fancy way of saying that if EMI wants MP3tunes to prevent unlawful activity, they need to provide specific information about where the infringement is taking place, and which songs are being infringed.
But it wasn’t all gravy for MP3tunes. The judge made it clear that the company did not go far enough in excising the unauthorized files from its service. According to Pauley’s ruling, MP3tues was also required to remove the infringing files from customers’ lockers, which they didn’t do. According to CNET, “Robertson and his company could still be required to pay millions in damages for the roughly 500 songs they were found to have infringed. Since the maximum statutory amount for copyright infringement is $150,000 for each instance, then Robertson could be required to pay as much as $75 million.”
So what does this mean for other locker-style services, like those recently offered by Google and Amazon? FMC Deputy Director Casey Rae-Hunter had the following to say to E-Commerce Times on that very matter:
“It’s important not to overstate precedent set by one district court, but for operators of similar platforms, the decision has to be seen as positive. Of course, it’s also important to note that locker services aren’t the only game in town — there are other online platforms that compensate creators and rights holders based on how the music is used. At the end of the day, the digital music space will be shaped as much by consumer preference as court decisions.”
Both parties are likely to appeal the decision. We’ll be keeping a close eye on this case and others, as the DMCA continues to be shaped by court interpretation.