not remove infringing songs from its users’ lockers. MP3tunes requested that EMI identify any
other infringing links, which EMI declined to do, asserting that its representative list was
sufficient to obligate MP3tunes to take down all other infringing material.^2734
EMI argued that MP3tunes had not satisfied the predicate conditions of Section 512(i) to
qualify for the safe harbors because it had purposefully blinded itself to its users’ infringement
and failed to take any action against hundreds of users who sideloaded copies of songs identified
in EMI’s takedown notices. MP3tunes countered this argument by noting that it had terminated
the accounts of 153 repeat infringers who violated copyrights by sharing the contents of their
lockers with other users.^2735
The court analyzed whether MP3tunes had satisfied the predicate conditions of Section
512(i) by drawing a distinction between “(1) users who know they lack authorization and
nevertheless upload content to the internet for the world to experience or copy, and (2) users who
download content for their personal use and are otherwise oblivious to the copyrights of others.
The former are blatant infringers that internet service providers are obligated to ban from their
websites. The latter, like MP3tunes users who sideload content to their lockers for personal use,
do not know for certain whether the material they download violates the copyrights of
others.”^2736 The court noted several cases (the Viacom, Io Group, and Corbis cases) requiring
the termination of users who repeatedly upload copyrighted material to service providers’ web
sites, but absolving services providers from policing users who merely consume that content.
The court also noted that, unlike in the Aimster case, MP3tunes had not purposefully blinded
itself to its users’ identities and activities. Rather, MP3tunes had tracked the source and web
address of every sideloaded song in its users’ lockers and could terminate the accounts of repeat
infringers, which it had done in 153 instances. Finally, the court found that MP3 tunes had
demonstrated it had a procedure for responding to DMCA takedown notices, and had used such
procedure to remove all of the specific web addresses containing infringing files that EMI had
identified.^2737
The court rejected EMI’s argument that MP3tunes had an obligation to terminate any
user who added multiple links to Sideload.com that appeared on one or more takedown notices
because they were automatic repeat infringers. The court noted that takedown notices
themselves are not evidence of blatant infringement and users could not be certain that they had
downloaded infringing content. Thus, MP3tunes’ decision to refrain from termination of those
user accounts was appropriate. Accordingly, the court ruled that MP3tunes had satisfied the
predicate conditions of Section 512(i) for eligibility for the safe harbors.^2738
(^2734) Id. at 635.
(^2735) Id. at 638.
(^2736) Id.
(^2737) Id. at 638-39.
(^2738) Id. at 639.