Grooveshark Timeline Legal

Clarification in EMI v MP3tunes case might impact on Universal’s Grooveshark litigation

By | Published on Friday 4 November 2011

The judge who oversaw EMI’s litigation against Michael Robertson and his service has responded to the major to a response it submitted to his original ruling.

As previously reported, was one of the original music-focused digital locker services, and was quickly sued by EMI because it operated without any licences from music companies. We initially thought the case might throw some light onto whether or not online MP3 storage services – such as those subsequently launched by Google and Amazon, again without record company backing – need licences to operate.

The copying bit of a digital locker service, where users upload their MP3s to a remote server, is covered in most territories by the user’s private copy right, but some have argued that if the digital locker company then provides a player through which stored MP3s can be streamed back to net-connected devices, then a copyright licence is required. Robertson and, subsequently, Google and Amazon, do not concur.

But, actually, in the end the litigation focused less on that debate, and more on the rights and wrongs of a spin off service run by the defendants which allows users to store and share links to other online sources of music, many of which are also unlicensed. EMI contended that Robertson’s link share service constituted contributory infringement, while the tech man argued back that he was covered by the Digital Millennium Copyright Act’s safe harbour provisions, providing operated a takedown system, blocking uses from sharing links to unlicensed content whenever a copyright owner complained.

While Judge William Pauley was critical about the way’s takedown system operated, and of the fact Robertson himself had posted links to clearly unlicensed content, he basically agreed with the defendant’s interpretation of copyright law regarding the links service.

EMI responded by asking the judge to reconsider a couple of points, where the company argued he had got it wrong, and also to consider more fully what the deal was with pre-1972 recordings which – because of the whims of American copyright law – are covered by state laws rather than federal law, and therefore arguably not subject to the DMCA and its safe harbours.

That’s a very interesting point, because Universal Music is suing (partly) unlicensed streaming service Grooveshark with regards its pre-1972 catalogue, mainly so the digital firm can’t, as it usually does, simply claim it is protected by the DMCA safe harbour clauses (Grooveshark, whose users upload tracks to its catalogue, argues it gets DMCA protection because it takes down Universal tracks from its servers if and when it is made aware of it).

Pauley’s response, issued this week, to EMI’s queries regarding his original ruling basically rejected all of the major’s criticisms. And on the pre-1972 issue, he says the safe harbour principles of the DMCA apply to all copyright works in America, oblivious of age, and even when the copyright protection comes from state and not federal law.

According to Techdirt the judge wrote: “Limiting the DMCA to recordings after 1972, while excluding recordings before 1972, would spawn legal uncertainty and subject otherwise innocent internet service providers to liability for the acts of third parties. After all, it is not always evident (let alone discernible) whether a song was recorded before or after 1972. The plain meaning of the DMCA’s safe harbours, read in light of their purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to 15 Feb 1972”.

Taken in their entirety, Pauley’s clarifications on his earlier ruling arguably make it much harder for EMI to appeal, should they wish to. But, perhaps more importantly, they also throw into doubt Universal’s strategy for combating Grooveshark through the courts.

If this technicality can’t be used, content owners who believe services like Grooveshark are abusing the DMCA’s safe harbour provisions may instead have to push for clarity on what level of takedown system is required for DMCA protection to apply. Though given the ruling in Viacom v YouTube, which basically approved the rather slack takedown system operated by the video sharing site in its early days, that might need to be legislative rather than judicial clarification.

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