infringement. Rather than introducing a categorical bar to the safe harbor, the
case law indicates only that inducement conduct may be relevant to establish an
exception to safe harbor protection, such as actual or apparent knowledge of
infringement. ... This is not a remarkable observation given that the DMCA safe
harbor exceptions are aimed at bad faith infringers.^2757Lastly, MP3tunes requested reconsideration of the court’s ruling with respect to its
supply of cover art to its locker users. Pursuant to a licensing agreement with Amazon,
MP3tunes offered users a “Lockersync” function that allowed users to retrieve and display the
corresponding cover art from Amazon while playing a song in their MP3tunes lockers. If cover
art was not part of a music file or stored on a user’s computer, Lockersync retrieved the cover art
from Amazon and displayed a link to that web site. EMI maintained that MP3tunes directly
infringed its copyrights in the cover art. In its October 2011 order, the district court had found
questions of fact precluded summary judgment because of contradictory proof on the issues of
MP3tunes’ use and storage of cover art and the direction of traffic to Amazon.^2758
MP3tunes contended that Viacom precluded copyright infringement liability for the cover
art because it was protected by the Section 512(c) safe harbor. In Viacom, the Second Circuit
found that YouTube’s “related videos” function, by which a YouTube computer algorithm
identified and displayed thumbnails of clips that were related to the video selected by the user,
was protected by the Section 512(c) safe harbor, which the Second Circuit ruled extends to
software functions performed for the purpose of facilitating access to user stored material.
MP3tunes’ cover art function used an algorithm that retrieved, copied, stored, and displayed
cover art from Amazon related to those songs a user chose to sideload. The district court noted
that, while MP3tunes’ cover art algorithm retrieved and copied cover art solely in response to a
user’s song selection, the cover art itself was provided by Amazon, not other MP3tunes users.
As such, the cover art was not stored at the direction of a user, but rather presented to users by
Mp3tunes as part of an automated marketing ploy. Thus, the primary purpose of the cover art
algorithm was not narrowly tailored to facilitate access to user stored material, but rather to
prompt users to go to a separate web site entirely for the purpose of purchasing music. The court
therefore declined to rule that MP3tunes’ cover art algorithm was shielded by the Section 512(c)
safe harbor, and EMI’s cover art infringement claim must proceed to trial.^2759
In March of 2014, a jury found MP3tunes directly liable for infringement of the
plaintiff’s reproduction and public display rights in cover art and for unfair competition with
respect to pre-1972 sound recordings. Concluding that MP3tunes acted with both red flag
knowledge and willful blindness, the jurors found MP3tunes secondarily liable for infringements
by MP3tunes’ users, third party websites, and MP3tunes executives. Finally, the jury did not
find MP3tunes secondarily liable for violating the plaintiffs’ distribution rights. While the jury
did not hold founder Michael Robertson contributorily liable for MP3tunes’ failure to remove
certain works from lockers in response to takedown notices, it imposed secondary liability on
(^2757) Id. at 21-22.
(^2758) Id. at 23-24.
(^2759) Id. at *24-27.