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Media Alerts - EMI Christian Music Grp., Inc. et al. v. MP3tunes, LLC et al.
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October 26, 2016
  EMI Christian Music Grp., Inc. et al. v. MP3tunes, LLC et al.
Headline: Second Circuit Vacates District Court's Interpretation of "Repeat Infringer" Under the Digital Millennium Copyright Act

Area of Law: Copyright

Issues Presented: Are internet users who download or copy songs for personal entertainment purposes "repeat infringers" under the safe harbor provision of the DMCA?

Brief Summary: MP3tunes operated two websites: and was primarily a "locker storage" service, which allowed users to store their music on the MP3tunes server and access it from internet-connected devices. provided a search function to users, allowing them to locate free music on the internet. contained a plug-in allowing users to upload music they found to their "locker." Music located in users' lockers was also searchable by A group of record companies and music publishers filed a copyright infringement lawsuit against MP3tunes and its CEO, Michael Robertson. On cross motions for summary judgment, a district court for the Southern District of New York granted the motion in part, finding that MP3tunes qualified for safe harbor protection under the Digital Millennium Copyright Act ("DMCA") because MP3tunes reasonably implemented a "repeat infringer" policy. The Second Circuit found the District Court had construed too narrowly the definition of "repeat infringer" and vacated the District Court's grant of partial summary judgment. To read the full opinion, please visit:

Extended Summary: MP3tunes was founded in 2005 by Michael Robertson. MP3tunes operated two websites. The first,, evolved into a "locker storage" service for its users. users could upload their songs to the server and access them from any internet-connected device., however, provided a search function for free music to its users. Embedded in the website was a feature that enabled users to upload music they found to their "locker." The addition of songs to individual users' lockers added to the number of searchable songs in's index. Songs uploaded to lockers from also had the benefit of not being counted towards storage allotments for the user. Since was the primary driver of traffic to, MP3tunes encouraged users to upload songs from their own accounts.

The District Court found that MP3tunes was afforded the safe harbor protection under the DMCA, which the plaintiffs challenged on appeal. The DMCA provides a safe harbor for internet service providers that "adopt[] and reasonably implement[] . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers." 17 U.S.C. ยง 512(i)(1)(A). Plaintiffs asserted that MP3tunes failed to satisfy the safe harbor requirements relating to users who created links to infringing content in the index.

The District Court found that users who downloaded or copied "songs from third-party sites for their personal entertainment" could not be "repeat infringer[s]." Furthermore, the District Court found that only users who uploaded content are "blatant infringers that internet service providers are obligated to ban from their websites."

The Second Circuit rejected the District Court's definition of "repeat infringer." The DMCA does not define "repeat infringers." Accordingly, the Second Circuit analyzed the term given its ordinary meaning, finding that repeatedly uploading or downloading copyrighted material for personal use does suffice to be found a "repeat infringer." The broader reading of "repeat infringer" is also supported by the structure and context of the DMCA, which relieves service providers from needing to ascertain the users' knowledge to qualify for the safe harbor provision. The Second Circuit also found the legislative history to be in accord with the broader reading of "repeat infringer," while no other circuit had constrained the definition of "repeat infringer" to encompass only willful infringers.

On the motion for summary judgment, MP3tunes offered evidence that they had terminated 153 users who shared their passwords. Plaintiffs, however, showed that MP3tunes took no action to try and connect infringing activity (which MP3tunes learned about through various takedown notices) and users who created links to that content. Therefore, a jury could reasonably infer that MP3tunes knew - or consciously avoided knowing - of specific repeat infringers and failed to take action. Accordingly, the Second Circuit vacated the District Court's finding and remanded the case for further proceedings.

Panel: Circuit Judges Cabranes, Straub, and Lohier

Argument Date: May 11, 2016

Date of Issued Opinion: October 25, 2016

Docket Numbers: 12-4369-cv(L), 14-4509-cv(XAP)

Decided: Affirmed in part, Vacated in part, Reversed in part, and Remanded in part.

Case Alert Author: Scott L. Wenzel

Counsel: Andrew H. Bart, Jenner & Block LLP for Plaintiffs-Appellees-Cross-Appellants; Ira S. Sacks, Ackerman LLP for Defendant-Appellant-Cross-Appellee.

Author of Opinion: Judge Lohier

Circuit: Second Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/26/2016 08:14 AM     2nd Circuit  

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