not removed from user lockers. The court granted MP3tunes’ motion for summary judgment on
its defense under the DMCA safe harbors with respect to all claims of infringement except with
respect to songs noticed in EMI’s takedown notices and not removed from user lockers.^2752
Upon a motion for reconsideration based on the Second Circuit’s rulings with respect to
willful blindness in Viacom International, Inc. v. YouTube, Inc.,^2753 the district court ruled that a
jury could reasonably interpret several documents in the record as imposing a duty to make
further inquiries into specific and identifiable instances of possible infringement. For example,
an email received by MP3tunes in April 2007 gave a specific blog title and the email’s author
stated that everything he had posted there was in clear violation of the DMCA and requested that
MP3tunes remove any MP3s that were linked to that site. Another email from November 2007
stated that if MP3tunes would search for a particular song title it would find five results, two of
which pointed to a particular web site that blatantly acknowledged that it contained infringing
MP3s. In a third email, an MP3tunes employee acknowledged that while it was not clear
whether content from a particular user’s site was all copyrighted material, it probably was.
Accordingly, the court vacated that portion of its October 2011 order granting summary
judgment to the defendants on the issue of contributor infringement liability for those songs not
subject to DMCA-compliant takedown notices, concluding that factual issues precluded
summary judgment.^2754
The court also reconsidered its grant of summary judgment with respect to red flag
knowledge in view of the fact that after Viacom, something less than a formal takedown notice
may establish red flag knowledge. The court concluded that the issue of the defendants’ red flag
knowledge could not be resolved on summary judgment.^2755
In its October 2011 order, the court had dismissed EMI’s standalone claim for
inducement as duplicative of its contributory copyright infringement claim. EMI asked for
reconsideration of that ruling as well, arguing that footnote 5 in the Viacom decision had cited
the Supreme Court’s Grokster decision for the observation that secondary copyright infringement
includes contributory, vicarious and inducement liability. EMI therefore asked the court to
revive its inducement claims as a separate cause of action. The court took no position on
whether inducement is a separate cause of action because in this case the evidence of record was
not sufficient to meet the high degree of proof required for an inducement claim.^2756 The court,
however, observed the following in dicta:
This Court is aware of no authority for the proposition that the DMCA safe harbor
is per se unavailable in an inducement claim, or that evidence of inducement
would obviate the requirement to prove actual or red flag knowledge of(^2752) Id. at 650-51.
(^2753) 676 F.3d 19 (2d Cir.2012).
(^2754) Capitol Records, Inc. v. MP3tunes, LLC, 2013 U.S. Dist. LEXIS 68793 at 10, 14-16 (S.D.N.Y. May 14, 2013).
(^2755) Id. at 18.
(^2756) Id. at *19-23.