Thursday, March 20, 2014

MP3Tunes Founder Michael Robertson Found Liable for Copyright Infringement

Eriq Gardner/The Hollywood Reporter/Billboard

On Wednesday, a jury in a New York federal courtroom found MP3Tunes founder Michael Robertson liable for infringing the works of Capitol Records, EMI and other record labels and music publishers.

Robertson operated two websites, MP3Tunes.comand, that once boasted a catalog of more than 400,000 recordings by 40,000 artists. In some respects an early version of cloud services, Robertson's sites allowed its users to upload music, listen to music, and transfer or "sideload" music from third-party websites to storage lockers.

The plaintiffs brought the copyright case in 2007, the same year that Viacom sued YouTube. In its nearly seven years on the court docket, Capitol Records v. MP3Tunes became incredibly complex. Thanks in large part to the lawsuit, MP3Tunes filed for bankruptcy in 2012 with Robertson later challenging the court's jurisdiction over him. Further, Robertson attempted to raise all sorts of issues relating to whether the record labels had properly registered copyrights on their songs.

The judge in the case determined on summary judgment that MP3Tunes and Robertson were liable for direct infringement for personally uploading some of the songs in question, but the main trial drama revolved around issues of "willful blindness" and "red flag knowledge" with regards to thousands of other hit songs.

As explored in the recently settled Viacom v. YouTube case, the Digital Millennium Copyright Act provides safe harbor from copyright liability under certain conditions. Most famously, Internet service providers that respond expeditiously upon the actual knowledge that comes from takedown notices can claim a safe harbor defense. But then there are points where the immunity can be attacked including when a service provider is aware of a high probability of infringement and consciously avoids to confirm that fact or when a service provider has a right and ability to control infringing activity.

In 2012, the 2nd Circuit Court of Appeals addressed this in the YouTube case and hinted that something less than a DMCA takedown notice could trigger legal obligations.

Afterward, the judge in the MP3Tunes case withdrew his prior grant of summary judgment in favor of the defendants on the possibility they exhibited willful blindness and had red flag knowledge.

Robertson countered this triable issue with evidence that the record companies had distributed free songs online as part of marketing campaigns, which he believed might exonerate him as a innocent infringer. After all, perhaps his infringements didn't rise to the level of a standard known as what's "objectively obvious to a reasonable person."

Unfortunately for him, a jury came back with a ruling that MP3tunes was willfully blind -- a determination that will be cheered by the entertainment industry's fiercest copyright advocates. It's pretty much the exact outcome that Viacom had hoped to get against YouTube before abandoning the case.

Robertson, who was also the founder of, successfully defended a few claims including ones over whether he should have removed files from users' lockers, but the trial now moves on to a determination of damages. Already, his lawyers are preparing for this next phase and are attempting to get the judge to preclude emails from other MP3Tunes employees from being introduced to the jury. Robertson hopes to establish that his "state of mind" was innocent with respect to the acts of infringement that occurred at his company. His latest legal strategy appears to be distancing himself as far as he can from the liability of his bankrupt company.

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