Capitol Records v. MP3tunes — Digital Lockers and Copyright Law

Several years before Google, Apple, and Amazon released their digital locker services for storing music, MP3tunes offered a similar service — and was promptly sued by major record labels including Capitol Records.  As we await the court’s decision now is a good time to recap the arguments made by both sides as well as the two Amicus briefs filed by Google and the Motion Picture Association of America.  Regardless of how the court decides an appeal seems likely.

Capitol Records’ Arguments

In Capitol Records’ motion for summary judgment, as well as in its opposition to MP3tunes motion for summary judgment, the record label plaintiffs argue the following:

• Using the MP3tunes.com services, in particular the Sideload.com service, MP3tunes users can obtain free copies of almost any song.  The Sideload service allows users to put music in their digital lockers even if they do not have a copy of the song.  Rather, as long as a song is publicly accessible on the internet, the Sideload service will copy the song and place it in the user’s digital locker.   Capitol Records argues that once one user Sideloads a song, other users can simply use the Sideload search service to find that song and add it to their digital locker without ever leaving the Sideload.com website.
• MP3tunes only stores a single “master copy” of each song uploaded.  Thus, the plaintiffs argues that even though MP3tunes has users go through the facade of uploading individual tracks, it simply discards identical tracks and accesses one master copy of the song.
• MP3tunes violates the copyright on album cover art by stealing the cover art from Amazon.com and displaying it on the MP3tunes website while the track is playing.
• MP3tunes is not eligible for protection under the safe harbors of the Digital Millennium Copyright Act as it has repeatedly failed to comply with the notice and take down procedure which requires it to remove infringing material from its website.  Specifically, the plaintiffs argue that while MP3tunes removed the Sideload link so no new users could use a particular link to add a song to their music locker, MP3tunes refused to delete copies of the song already in a users Mp3tunes locker which had been sideloaded from the identified link.
• Every member of the MP3tunes executive team used the MP3tunes services to infringe the plaintiffs’ copyrights.
• The plaintiffs argue that MP3tunes is liable as a direct copyright infringer by streaming “master” copies of plaintiffs’ songs, for infringing the Cover Art to the music, and for the direct infringement of MP3tunes executive team.  Plaintiffs further argue that MP3tunes is liable as a contributory copyright infringer since it know of and contributed to the infringement.  Finally plaintiffs argue that MP3tunes is a vicarious copyright infringer because it profited from its users’ infringement and refused to mitigate that infringement.

MP3tunes Arguments

In MP3tunes motion for summary judgment as well as in its opposition to the plaintiffs’ motion, MP3tunes makes the following arguments:

• MP3tunes is a locker service unique to each individual user.  User’s lockers are not intended to be shared with other users.
• The storage services offered at MP3tunes.com are user-directed and thus MP3tunes is entitled to the safe harbor protection of the DMCA. MP3tunes has complied with plaintiffs’ take down notices, but most of those notices are woefully incomplete.
• The MP3tunes Sideload service is nothing more than a search engine.  Just as you could search for a particular song on Google and likely find a copy somewhere on the internet , you can use the MP3tunes Sideload service to search for music.  Instead of then having to download the music and then re-upload it to your music locker, Sideload saves you these additional steps by simply downloading the track for you directly into your digital locker.
• Plaintiffs have encouraged sharing of music on the internet with “viral” marketing campaigns where music is placed online for the sole purpose of getting others to copy and share the music with their friends.  MP3tunes argues that “Plaintiffs employ teams of marketeers, artists, and agents who collectively have placed so many free music downloads on the Internet that Plaintiffs themselves cannot distinguish between authorized and unauthorized links.”
• The Court specifically requested the parties review Judge Stanton’s decision in Viacom Int’l v. YouTube, 2010 U.S. Dist. Lexis 62829 (S.D.N.Y. June 23, 2010). However, Capitol Records merely devotes two sentences to it in their brief as the case does not favor them.  MP3tunes argues that this case is on all fours with the current dispute.
• MP3tunes claims it fully complies with DMCA takedown notices and removes all links to any material identified to it by a third party.   MP3tunes argues that it has even banned entire websites from Sideloading and banned more than 100 repeat copyright infringers.  MP3tunes argues that it is not required to search through users’ music lockers to find allegedly infringing works,  rather it is up to the person issuing the DMCA take down notice to identify the URL where the infringing material exists.
• MP3tunes states that it does not keep a “master” copy of recorded music, but rather uses the industry standard open source distributed file system MogileFS.  This file system uses a unique hash tag to store and retrieve data based on content rather than location.  MP3tunes argues that this file system is nothing like the “master” file system claimed by the plaintiffs.
• The Cover Art is licensed from Amazon.com and clicking on the cover art takes the user to Amazon.com where they can purchase music.

Google’s Amicus Brief Arguments

In Google’s Amicus brief, it focus on the the DMCA applicability to pre-1972 copyright works which were protected under state rather than federal law.  Google argues that the DMCA equally applies to both pre-1972 and post-1972 musical works.

MPAA’s Amicus Brief

In the Motion Picture Association of America’s Amicus brief, the organization argues that MP3tunes are requesting that the court ignore the massive copyright infringement occurring on the  on their websites.  Specifically the organization argues that MP3tunes has actual knowledge of its services being used for copyright infringement and that the infringement is encouraged by Mp3tunes.   The organiztion further argues that MP3tunes streaming a song to different users in different locations and at different times is a “performance” of the work.

Stay tuned.  This one will be an interesting one to watch.