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EMI hits out at MP3tunes founder’s attempts to cut infringement damages bill

By | Published on Tuesday 27 May 2014

Michael Robertson

Legal reps for EMI have hit out at a motion filed earlier this month by MP3tunes founder Michael Robertson that seeks to have the copyright infringement ruling made against him earlier this year retried, reconsidered or, at least, the damages he was ordered to pay reduced.

As much previously reported, MP3tunes was one of the original music-focused digital locker services, but it quickly found itself at the receiving end of litigation from EMI. There were various elements to the lawsuit, which targeted Robertson personally as well as his company, with the defendant basically winning at first instance, but the music company prevailing on appeal.

Although not all the copyright infringement allegations against Robertson stood up on second hearing, the jury hearing the case reckoned that the web entrepreneur was liable for distributing unlicensed content, and links to unlicensed content, over this own platform, and perhaps more importantly for being “wilfully blind” to others copyright infringement on his site. The ruling led to EMI being awarded mega-bucks damages, which ended up being $48 million (even more than the initially mooted $41 million).

Robertson filed a motion with the court earlier this month raising various concerns over the ruling against him, and the size of the damages awarded, which were so high partly because the jury opted for more than the statutory minimum when deciding how much Robertson should pay, and partly because of the number of tracks listed in the case as being infringed, damages under US copyright law being applied ‘per infringement’.

According to Law 360, Robertson’s lawyers argue that the “wilfully blind” bit of the case is crucial when it comes to the damages, as it added 2000 more copyrights that their client is accused of infringing, in addition to those where there was direct infringement (ie Robertson shared the files himself). But EMI took advantage of “vague case law” to score the “wilfully blind” ruling, Robertson’s attorney’s argue.

For their part, the EMI legal team has hit out at Robertson’s various calls for a rethink, arguing that “after the immense work and considered judgment invested by the jury in this case, Robertson asks this court to discard the jury’s careful verdicts based largely on self-serving characterisations of isolated pieces of evidence and testimony”.

Robertson also argues that the damages sum is disproportionate to the losses EMI suffered as a result of files and links being shared over the MP3tunes website, to which the record company’s lawyers counter: “We were under no obligation to demonstrate actual losses to recover statutory damages. The jury was free … to conclude that the harm to plaintiffs (and the industry generally) from defendants’ conduct went well beyond lost sales”.

It remains to be seen how the judge responds to both sides’ motions. Of course MP3tunes went under in the midst of this dispute, so no longer exists, while EMI was split into its recordings and music publishing divisions and sold on to Universal and Sony/ATV respectively.