Knowledge Not Required to Be Repeat Infringer Under DMCA: Second Circuit | Practical Law

Knowledge Not Required to Be Repeat Infringer Under DMCA: Second Circuit | Practical Law

In EMI Christian Music Group, Inc. v. MP3tunes, LLC, the US Court of Appeals for the Second Circuit ruled that the definition of repeat infringers under the Digital Millennium Copyright Act (DMCA) does not require knowledge that the content is infringing.

Knowledge Not Required to Be Repeat Infringer Under DMCA: Second Circuit

Practical Law Legal Update w-004-1550 (Approx. 3 pages)

Knowledge Not Required to Be Repeat Infringer Under DMCA: Second Circuit

by Practical Law Intellectual Property & Technology
Published on 28 Oct 2016 • USA (National/Federal)
In EMI Christian Music Group, Inc. v. MP3tunes, LLC, the US Court of Appeals for the Second Circuit ruled that the definition of repeat infringers under the Digital Millennium Copyright Act (DMCA) does not require knowledge that the content is infringing.
On October 25, 2016, in EMI Christian Music Group, Inc. v. MP3tunes, LLC, the US Court of Appeals for the Second Circuit vacated the US District Court for the Southern District of New York's partial summary judgment granting MP3tunes, LLC safe harbor protection under the Digital Millennium Copyright Act of 1998 (DMCA) and affirmed summary judgment allowing one statutory damages award for songs with multiple copyright owners ( (2d Cir. Oct. 25, 2016)).
The Second Circuit:
  • Vacated summary judgment protecting MP3tunes under DMCA's safe harbor for having implemented a repeat-infringer policy, holding that the district court applied too narrow a definition of repeat infringers, and remanded the claim.
  • Affirmed the district court's decision to permit only one award of statutory damages for infringed songs although separate entities owned copyrights to the musical compositions and their corresponding sound recordings.
  • Reversed the district court's judgment in favor of the plaintiff record companies and music publishers including EMI Christian Music Group, Inc. (collectively EMI) on other copyright claims.
This case stemmed from a suit that EMI brought against MP3tunes—an internet service provider (ISP) that allowed users to store music on its servers and search for free music on the internet—alleging that MP3tunes' services infringed their copyrights in thousands of songs. MP3tunes argued that it qualified for safe harbor protection under the DMCA because it adopted and reasonably implemented a policy for terminating subscribers and account holders who are repeat copyright infringers (17 U.S.C. § 512(i)(1)(A)). EMI argued that MP3tunes failed to implement a repeat-infringer policy because it failed to track users who repeatedly created links to infringing content in MP3tunes' sideload.com index, thereby allowing users to search for and upload free music on the internet.
The district court granted summary judgment in favor of MP3tunes, ruling that it qualified for safe harbor under the DMCA. The district court:
  • Defined repeat infringers as users who upload infringing content to the internet, knowing that the conduct infringes another's copyright.
  • Ruled that MP3tunes complied with the safe harbor requirements because it terminated the accounts of users who allowed others to access and copy their music files without authorization.
EMI appealed, arguing that MP3tunes never reasonably implemented a repeat-infringer policy because it failed to track users who repeatedly created links to infringing content in the sideload.com index. The Second Circuit agreed with EMI and vacated the district court's grant of summary judgment.
Specifically, the Second Circuit addressed:
  • Whether certain MP3tunes users qualified as repeat infringers.
  • If so, whether MP3tunes reasonably implemented a policy directed at them.
The Second Circuit first rejected the district court's definition of repeat infringers, finding that it was not supported by the DMCA. Because the DMCA does not define the term, the Second Circuit looked to the ordinary meaning of the phrase. The court also explicitly rejected the knowledge requirement imposed by the lower court because copyright infringement is a strict liability offense, and defined a repeat infringer as one who repeatedly uploads or downloads copyrighted material for personal use, regardless of knowledge.
Based on this definition, the Second Circuit ruled that summary judgment was inappropriate in light of conflicting evidence about MP3tunes' policy on repeat infringers. The court therefore vacated and remanded the district court's grant of summary judgment.
Among other findings, the Second Circuit also considered the district court's limitation of statutory damages to a single award for a musical composition and its accompanying sound recording. Section 504(c) of the DMCA, which allows copyright owners to claim statutory damages, also defines all parts of a compilation or derivative works as one work. The Second Circuit agreed with the district court's determination that a sound recording is a derivative work of the accompanying musical composition and therefore triggers only one award of statutory damages. The Court also cited Copyright Act legislative history to support this conclusion.