Robertson for every other claim on which it held MP3tunes liable. During the damages phase,
the jury found MP3tunes and Robertson acted willfully as to all infringing acts except for
MP3tunes’ failure to remove works from lockers. The jury awarded the plaintiffs $48,061,073 in
damages.^2760
Robertson then moved for judgment as a matter of law, or alternatively a new trial, and
for remittitur. The court mostly denied Robertson’s motions, granting them only to the following
extent:
-- It granted JMOL as to Robertson’s liability for secondary infringement for tracks
sideloaded by users from domains that were listed ten or more times in takedown notices. The
court ruled that red flag knowledge requires awareness of facts that would have made specific
instances of infringement objectively obvious to a reasonable person. Knowledge that a high
percentage of content on a domain is infringing does not establish actual or red flag knowledge
of particular instances of infringement. It was therefore impermissible to impute red flag
knowledge or willful blindness to MP3tunes or Robertson based on such domains because doing
so would impose an obligation to affirmatively monitor content, in contravention of Section
512(m)’s clear instruction that no such obligation exists.^2761
-- Similarly, the court granted JMOL as to Robertson’s secondary liability for
infringement for all tracks sideloaded pre-2007, which the plaintiffs argued the defendants
should have known were infringing since the major record labels offered no MP3s for sale until
- The court ruled that knowledge that a high percentage of a type of content is infringing is
insufficient to create red flag knowledge. And given that under the DMCA, service providers are
under no obligation to conduct routine searches and eliminate material likely to be infringing,
neither MP3tunes nor Robertson could be held liable for failing to routinely search its servers for
major-label MP3s released before January 2007.^2762
-- The court granted JMOL as to Robertson’s secondary liability for users’ sideloading of
tracks by The Beatles, except as to the song “Strawberry Fields Forever” (because a user had
sent MP3tunes an email indicating that song was available on Sideload.com) and those Beatles
songs sideloaded by MP3tunes executives themselves. Apart from those specific instances, the
record was bereft of any other evidence supporting the jury’s finding of red flag knowledge and
willful blindness as to specific works by The Beatles.^2763
-- The court granted JMOL as to Robertson’s liability for public display of cover art.
Each time any user uploaded a track, MP3tunes’ software automatically searched for and
retrieved cover art, regardless of whether other users had that cover art in their lockers. Only one
user was capable of receiving each copy. Because there was no master copy of the cover art,
(^2760) Capitol Records, Inc. v. MP3tunes, LLC, 2014 U.S. Dist. LEXIS 140139 at 14-15 (S.D.N.Y. Sept. 29, 2014).
(^2761) Id. at 26-27.
(^2762) Id. at 27-28.
(^2763) Id. at 30-33.