Turning to the specifics of the Section 512(c) safe harbor, the court first rejected EMI’s
argument, relying on Section 301(c) of the copyright statute,^2739 that the safe harbors do not
apply to songs recorded prior to Feb. 15, 1972. Although noting it was an issue of first
impression, the court concluded that there is no conflict between Section 301 and the DMCA’s
safe harbors for infringement of pre-1972 recordings. The text of the DMCA limits immunity
for the “infringement of copyrights” without drawing any distinction between federal and state
law. Although Section 501(a) of the copyright statute makes anyone violating the rights
established by Sections 106 through 122 an infringer, that section does not suggest that its list of
acts constituting infringement is all inclusive. The court also noted that the DMCA was enacted
to clarify copyright law for Internet service providers in order to foster fast and robust
development of the Internet. Limiting the DMCA to recordings after 1972 would spawn legal
uncertainty and subject otherwise innocent Internet service providers to liability for the acts of
third parties. Accordingly, the court concluded that the DMCA’s safe harbors, read in the light
of their purpose, cover both state and federal copyright claims and apply to sound recordings
fixed prior to Feb. 15, 1972.^2740
Turning to the sufficiency of EMI’s takedown notices, the court held that a notice merely
stating “all songs” by a particular artist, or some other vague descriptor and nothing more, is
inadequate to trigger a takedown obligation because it does not enable the service provider to
locate the allegedly infringing material. Service providers must take down the specific infringing
material identified in the notice but as a general matter are not required to search for and take
down other material that may infringe the identified copyrighted works.^2741 However, in this
instance:
MP3tunes was obligated to remove specific works traceable to users’ lockers.
Because MP3tunes keeps track of the source and web address for each sideloaded
song in each user’s locker, EMI’s notices gave sufficient information for
MP3tunes to locate copies of infringing songs in user lockers. ... Where service
providers such as MP3tunes allow users to search for copyrighted works posted to
the internet and to store those works in private accounts, to qualify for DMCA
protection, those service providers must (1) keep track of the source and web(^2739) Section 301(c) states, “With respect to sound recordings first fixed before February 15, 1972, any rights or
remedies under the common law or statute of any State shall not be annulled or limited by this title until
February 15, 2067.”
(^2740) MP3tunes, 821 F. Supp. 2d at 640-42. In December 2011, the Copyright Office published a report concluding
that the DMCA safe harbors do not apply to pre-1972 recordings. Federal Copyright Protection for Pre-1972
Sound Recordings (Dec. 2011), available at http://www.copyright.gov/docs/sound/pre-72-report.pdf. After
publication of the report, the district court, in deciding a motion to certify an interlocutory appeal, noted that his
decision with respect to applicability of the safe harbors to pre-1972 recordings “may involve a substantial
ground for difference of opinion, particularly in light of the Copyright Office’s determination that the DMCA
safe harbors do not apply to pre-1972 recordings.” Capitol Records, Inc. v. MP3tunes, LLC, 2012 U.S. Dist.
LEXIS 8984 at 2 (S.D.N.Y. Jan. 9, 2012). The court, however, decided not to certify the issue for an
interlocutory appeal. Id. at 10.
(^2741) MP3tunes, 821 F. Supp. 2d. at 642.