Music Monday- EMI Group Lawsuit Spurs Second Circuit to Redefine “Repeat Infringer” under DMCA

Back in 2007, EMI Group had filed a copyright infringement lawsuit over the founder of website MP3tunes, Michael Robertson. Though both MP3tunes and EMI are now non-existent, courts have allowed for the lawsuit to continue.

In a jury trial in 2014, the online music storage website was ordered to pay over $41 million in damages to EMI Group, which was later decreased to $12.2 million. Both sides appealed the decision and received a verdict last Tuesday.

It was good news for the companies that had composed EMI Group, as the U.S. Court ofAppeals for the Second Circuit reinstated part of the original award they were supposed to have received. The Second Circuit went on to state that the District Court had been too lenient in their definition of a “repeat infringer,” as it did not support the legislative history of the Digital Millennium Copyright Act (DMCA). The DMCA provides a “safe harbor” from copyright infringement lawsuits for online service providers who meet specific requirements, such as blocking access to allegedly infringing material and blocking repeat infringers. The Second Circuit wrote, “All it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use. . . [A] ‘repeat infringer’ does not need to know of the infringing nature of its online activities, or to upload rather than download content.”

The Second Circuit went on to find that though Robertson had blocked a little over one hundred repeat infringers, he had also “personally encouraged his employees to sideload songs to add to the index. . . [t]he entire point of sideloading [being] to make more music available for user download—even though Robertson knew the music was generally not available for free in MP3 form.”

Andrew Bart, the lawyer representing EMI, commented on the Second Circuits decision stating, “We are gratified the Court reinstated the jury’s verdict finding the defendants were willfully blind to the rampant infringement on their website.” With this new interpretation of what constitutes a “repeat infringer,” it will be interesting to see how online service providers meet the necessary requirements of the DMCA in order to keep their safe harbor.

Credit: Cristina Gabrielyan

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