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MP3tunes case returns to court

By | Published on Monday 18 February 2013

With filing for bankruptcy last May, and EMI basically no longer existing as a standalone music company, you’d be forgiven for assuming that the EMI v MP3tunes lawsuit might have fizzled out.

But oh no, legal reps for EMI were back in court last week appealing the original ruling in the case, which mainly went in favour of MP3tunes, in part arguing that the previously reported appeal court ruling in the flagship Viacom v YouTube case should now be considered.

As much previously reported,, created by original founder Michael Robertson, was one of the original music-specific digital locker services to reach the market. EMI sued the new company and Robertson himself in 2007, claiming that the operation infringed their copyrights. And so a long drawn out legal squabble began.

It initially looked like the case might throw some clarity on to what extent a basic music-focused digital locker service could operate without a licence from the music companies, though in the end much of the legal argument focused on a specific side-service offered by that enabled users to compile and share lists of music files they had found online (much of which was available via a sister site called

Many of those listed links pointed to unlicensed sources of music, something EMI reckoned constituted copyright infringement. But, said, the digital firm operated a ‘takedown system’, removing links that pointed to illegal content if made aware of them by copyright owners, and therefore the company had protection under the Digital Millennium Copyright Act.

Although the judge originally hearing the case in 2011 was critical of for failing to enact some takedown notices, and ruled that Robertson was personally liable for infringement for posting links to unlicensed content on his own account, he said that in the main MP3tunes’s argument that it was protected from widespread infringement claims because of the DMCA was sound.

EMI pledged to carry on with its legal assault though, initially by targeting over links it published pointing to pre-1972 sound recordings, which are protected by State rather than Federal copyright law in the US, and therefore possibly not subject to the DMCA – an argument Universal has been using in its fight against Grooveshark, albeit with little success to date.

But last week EMI’s lawyers were using a different argument: an appeal court ruling in the Viacom v YouTube case that was made last spring. Viacom’s lawsuit against YouTube, regards the video-sharing site’s allegedly shoddy takedown systems in its early years, is something of a landmark case when it comes to the extent to which YouTube-type sites must go in order to stop their services being used to infringe copyright.

The original ruling in Viacom v YouTube, in YouTube’s favour, set the standard pretty low, ie even a shoddy takedown system should be enough to ensure protection against infringement claims under the DMCA. Many content-sharing sites have subsequently since pointed to the case as proof they too cannot be held liable for the infringements of their users.

However, last year a US appeals court kicked Viacom v YouTube back to a lower court for new consideration, while also positing some opinions on the relevance of “wilful blindness”, ie operators of content-sharing sites who deliberately ignore rampant copyright infringement on their networks, because they know the infringement is driving sizable amounts of traffic, and is therefore good for business.

And, according to Law360, that is what EMI’s lawyers focused on in a new hearing relating to the case last week. The major’s lawyer, Andrew Bart, claimed: “[Robertson] said, ‘You know what, I can drive traffic to this site by taking advantage of all the free infringing music out there'”. To what extent MP3tunes was run to induce infringement, Bart added, was an issue of fact rather than legal interpretation, and therefore should be considered by a jury.

Speaking for MP3tunes, Ira Sacks disputed Bart’s claims, saying the evidence does not show that his clients knew about the infringement committed on their site (even if any such lack of knowledge seems rather unlikely). He also called for the ruling against Robertson personally to be overturned.

The case continues.

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