## Facts

- MP3tunes operated a paid cloud “locker” that let users store and stream music files from MP3tunes’ servers.
- MP3tunes also operated Sideload.com, a free search tool that let users find music files on third-party sites and “sideload” them into their lockers through a plug-in.
- Sideload.com maintained an index of songs previously sideloaded by other users, allowing additional users to add those songs to their lockers without visiting the source site.
- EMI (record companies and music publishers) alleged the services facilitated unauthorized copying of thousands of copyrighted sound recordings and musical compositions.
- EMI sent multiple DMCA notices identifying allegedly infringing songs and URLs in the Sideload.com index; MP3tunes removed many identified links but did not track or terminate users who repeatedly added infringing content.
- Evidence indicated MP3tunes personnel, including founder/CEO Michael Robertson, sideloaded music from websites characterized as obviously infringing and contributed those files to the indexed content available to users.
- Two prominent categories were emphasized: “pre-2007 MP3s” and Beatles recordings, both argued to present obvious signs of unauthorized distribution.

## Issues

1. Whether MP3tunes qualified for DMCA safe-harbor protection under 17 U.S.C. § 512(i) by adopting and reasonably implementing a policy for terminating “repeat infringers.”
2. Whether evidence supported jury findings that MP3tunes had red-flag knowledge of, or was willfully blind to, infringement involving pre-2007 MP3s and Beatles recordings.
3. Whether the district court properly granted judgment as a matter of law for defendants on infringement claims involving those categories of works.

## Decision

- The Second Circuit vacated the ruling that MP3tunes satisfied § 512(i) as a matter of law, holding the district court used an overly narrow understanding of “repeat infringer.”
- The court reversed the judgment as a matter of law for defendants on claims involving pre-2007 MP3s and Beatles recordings, finding sufficient evidence for a reasonable jury to infer red-flag knowledge or willful blindness.
- The court remanded for further proceedings on claims and remedies affected by the erroneous safe-harbor and judgment-as-a-matter-of-law rulings.
- The court affirmed the judgment in all other respects.

## Legal Principles

- For § 512(i), “repeat infringer” is given its ordinary meaning and may include a user who repeatedly infringes by repeatedly sideloading copyrighted material, even for personal use and without any prior adjudication of infringement.
- A service provider must not only adopt but also reasonably implement a repeat-infringer termination policy; a paper policy is insufficient if the provider fails to meaningfully identify and act against repeat infringers detectable through notices and account activity.
- DMCA safe harbor is unavailable where the provider has actual knowledge or red-flag awareness of specific infringing activity and fails to act expeditiously to remove or disable access.
- Red-flag knowledge or willful blindness may be inferred from the obviousness of infringement in particular categories of content and from service-provider conduct that facilitates access to such material.

## Conclusion

The Second Circuit limited DMCA safe-harbor protection by construing “repeat infringer” broadly and holding that a jury could find red-flag knowledge or willful blindness for certain obvious infringement categories, requiring further proceedings on liability and remedies tied to those errors.


EMI Christian Music Grp., Inc. v. MP3tunes, L.L.C., 844 F.3d 79 (2d Cir. 2016)