MP3tunes Summary Judgment Decision: Defendants Only Liable For Specific Songs In Takedown Notice That Were Not Taken Down

Creative Commons License photo credit: Tac Anderson

The Southern District of New York has issued its ruling in the Capitol Records v. MP3tunes case, granting partial summary judgment for each side. The bottom line is that MP3tunes and its founder, Michael Robertson (also the founder of, are only liable for the infringement of sound recordings that were specifically identified in DMCA takedown notices but not removed from users’ accounts.

One amazing nugget hidden in the first footnote of the decision (page 12), is the court’s holding that the DMCA safe harbor applies to pre-1972 sound recordings, even though such recordings are not protected by federal copyright. This holding, if noticed and followed by Justice Kapnick, should destroy the claims brought by UMG Recordings against Grooveshark in New York State court. UMG brought these claims in state court, limited to common law copyright infringement for pre-’72 recordings, as an attempted end-run around the DMCA.

There are lots of other points of interest in the decision, which I will get to soon. In the meantime, I wanted to post the decision as quickly as possible for your reading enjoyment:



  1. Tim Sarken says:

    A very interesting case and decision. However, I would note that it appears that court has made one unfounded assumption: namely that just because a copyrighted work is provided for public access without authorization (ex. posted to the internet) that ALL access to that copy of the work is unauthorized. As in space- or time-shifting cases, I may make a copy of a lawfully purchased work for my own use without infringing the copyright. So, if I want to listen to a cd I have purchased at my office without transporting the CD back and forth, I could make a copy to keep at work. Instead, I could presumably choose to put a copy of the song on my own personal website to which only I have access, and download it at my office. That would be a permissible use as I understand the theory. Now, if my copy of the file on my website were available to the public (either intentionally or unintentionally) then I could be distributing unauthorized copies in violation of the owner’s copyright if anyone else downloaded the file, but it would still be permissible for me to download the file, because it is my own copy of a song I legally purchased.

    In such a case, I think we can see the difference between MP3Tunes’ activities of providing links through their sideload service, and the files stored in users’ lockers. Clearly MP3Tunes did what is expected of them under the DMCA in taking down links to infringing material from their sideload service once notified by the copyright holder. However, it does not necessarily follow that ALL copies loaded from those links in the users “lockers” are therefore infringing. In my example above, if I had used the link from my website to load the copy of the song into my MP3Tunes locker, then presumably I am still within my rights as the valid owner of the copy to have placed a copy in my locker, just as I could have brought a copy on CD into the office. So, it does not follow that just because links by some or most others to the copy would be infringements, that all links to that copy are impermissible. To take the example a step further, it’s not even clear that only one link to the file can be permissible, as if my wife and I purchased the CD together, I can imagine a valid argument that we should both be able to keep a copy in separate MP3Tunes lockers without infringing the copyright holder’s rights, both of which are then permissible copies loaded from the same link, which link could be subject to a Takedown Notice under the DMCA.

    I think this example shows that the court erred in assuming that just because a link that makes a file available to the public is an infringement (under which situation a service provider such as MP3Tunes should remove the link to such material from a service like their sideload service once served with a Takedown Notice) that it then follows that all copies derived from that link are necessarily “infringing” copies. And, given the court’s acknowledgement that “the DMCA does not place the burden of investigation on th einternet service provider.”

Speak Your Mind