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Some of ideal business schemes can damage the interests of copyright holders

Robertson founded MP3tunes in February 2005 and launched the website to sell independent artists’ songs in the mp3 file format. In the fall of 2005, MP3tunes added a storage service allowing users to store music files in personal online storage “lockers.” Songs uploaded to a user’s locker could be played and downloaded through any internet-enabled device. There are free lockers with limited storage space and premium lockers with expanded storage for a subscription fee.

Over 300,000 users have signed up for a locker. LockerSync, a free software program provided on the website, enables users to automatically upload to their lockers mp3 files stored on their personal hard drives. Another feature of the website called Webload allows a user to enter the web address of a music file stored on a third-party server connected to the internet, and transfer the file to the user’s locker.

MP3tunes owns and operates a second website located at That website allows users to search for free song files on the internet. User can enter keywords (e.g., “Sinatra” or “Watchtower”) and returns a list of potential matches. By clicking on a search return, the user is taken to a page where he can play the song, follow a link to the third-party website hosting the song, or download the song to another computer.

If the user has a locker on, displays a link that if clicked, will “sideload” (i.e., download) the song from the third-party website and save it to his locker. MP3tunes keeps track of the sources of songs in its users’ lockers. Thus, MP3tunes can identify the third-party websites from which users copied songs to their lockers. Apart from its search function, servers automatically generate lists of “Most Popular,” “Featured,” and “New” songs that users can browse. also offers users free Sideload Plug-in software. When a user with the Sideload Plug-in surfs the internet and comes across a website with a free song file, a button appears on the third-party website that will copy the song directly to the user’s MP3tunes locker, without visiting When a user sideloads a song from a third-party site, either through the Sideload Plug-in or Webload software, that third-party website is added to’ s index of searchable songs.

Thus, as users discover free songs on the internet, the number of songs available through increases. When a downloadable song is removed from a third party source, the sideload feature becomes inoperable and users can no longer add the song to their lockers. But, users who sideloaded the song before it was removed from the third-party source may continue to access the song through their MP3tunes lockers.

On September 4, 2007, MP3tunes received a takedown notice from EMI Music Group North America (“EMGNA”) identifying 350 song titles and web addresses that allegedly infringed EMI’s copyrights. EMGNA also provided a list of EMI artists and demanded that MP3tunes “remove all of EMI’s copyrighted works, even those not specifically identified.” MP3tunes responded by removing links to the specific web addresses listed in EMGNA’s letter, but did not remove infringing songs from its users’ lockers. In addition, by letter dated September 13, 2007, MP3tunes asked EMGNA to identify any other infringing links. EMGNA declined to identify other links and asserted that its representative list was sufficient to obligate MP3tunes to takedown all other infringing material.

On October 25, 2007, MP3tunes received two additional takedown notices: another from EMGNA and one from EMI Entertainment World (“EEW”). Each notice identified specific infringing songs and URLs and demanded that MP3tunes takedown all other EMI copyrighted works. Once again, MP3tunes removed the specific links on but did not remove any content from users’ lockers. MP3tunes reiterated its earlier request that EMGNA and now EEW specifically identify any other infringing links. Neither EMGNA nor EEW responded. Rather, on November 9, 2007, EMI filed lawsuit.

This case turns in large part on whether MP3tunes is eligible for protection under the safe harbors created by the DMCA.

MP3tunes’ users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. The MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they download violates the copyrights of others. This applies to MP3tunes executives. Like their users, they do not post content to the internet and cannot be certain whether content on third-party sites actually infringes. But ultimately there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on were unauthorized.

Moreover, MP3tunes does not purposefully blind itself to its users’ identities and activities. It tracks the source and web address of every sideloaded song in its users’ lockers and can terminate the accounts of repeat infringers. And Robertson asserted that MP3tunes employed those resources and terminated the accounts of 153 users who allowed others to access their lockers and copy music files without authorization.

Finally, MP3tunes demonstrated that it has a procedure for responding to DMCA takedown notifications and does not interfere with copyright owners’ ability to issue such notices. MP3tunes reacted to EMGNA’s and EEW’s notices and removed the links listed on But, takedown notices themselves are not evidence of blatant infringement and users could not be certain that they had downloaded infringing content. Thus, MP3tunes’ decision to refrain from terminating those user accounts was appropriate.

In addition, MP3tunes argues that it would be subject to lawsuits by users if it removed personal property from user lockers. MP3tunes exaggerates the potential liability of removing content from users’ lockers. MP3tunes’ Terms of Use clearly authorize it to block a user’s access to material in lockers. And the DMCA provides MP3tunes with immunity and a procedure for dealing with claims from its users. Accordingly, there is no genuine dispute that MP3tunes does not qualify for safe harbor protection for songs stored in users lockers that were sideloaded from the unauthorized web sites identified in the EMGNA and EEW takedown notices.

Because MP3tunes keeps track of the source and web address for each sideloaded song in each user’s locker, EMI’s notices gave sufficient information for MP3tunes to locate copies of infringing songs in user lockers. All MP3tunes had to do was search for the offending web address in its database of information regarding user lockers.

EMI’s notifications provided only enough information for MP3tunes to remove the noticed web sites from and to find and remove copies of songs sideloaded from those websites. Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users’ accounts were unauthorized copies. Thus, there is no genuine dispute that MP3tunes complies with the requirements of the DMCA with respect to songs sideloaded from websites not listed in the takedown notices.

EMI has not shown that MP3tunes’ executives sideloaded songs from clearly pirate websites. The same can be said for the websites used to populate For instance, the web sites,, and, as well as the other sites used by MP3tunes executives to sideload songs do not use the words “pirate” or “bootleg” or other slang to indicate their illegal purpose and they are not otherwise clearly infringing. They are simply popular file sharing sites. However, the financial benefit must be attributable to the infringing activity.

While may be used to draw users to and drive sales of pay lockers, it has non-infringing uses. Moreover, MP3tunes did not promote infringement. Rather, it removed infringing links to when given notice, and terminated the accounts of users who blatantly shared copyrighted files with others. In addition, any link between infringing activity and a direct benefit to MP3tunes is attenuated because sideloaded songs were stored free of charge and infringing and noninfringing users of paid precisely the same or nothing at all, for locker services.

Specifically, MP3tunes can monitor songs downloaded by users and the third-party sites listed on and remove those songs and sites at will. However, “control of infringing activity” under the DMCA requires something more than the ability to remove or block access to materials posted on a service provider’s website. MP3tunes users alone choose the websites they link to and the songs they sideload and store in their lockers. MP3tunes does not participate in those decisions. At worst, MP3tunes set up a fully automated system where users can choose to download infringing content. Accordingly, this Court finds that there is no genuine dispute that MP3tunes neither received a direct financial benefit nor controlled the infringing activity.

However, MP3tunes does not qualify for safe harbor protection for songs sideloaded from links identified in EMGNA’s and EEW’s takedown notices which it failed to remove from user lockers. MP3tunes’ knowledge of the unauthorized use of infringing sideloaded material is manifest. Although MP3tunes removed the infringing links from, it chose not to block any of its users from having unrestricted access to infringing copies of Plaintiffs’ recordings stored in user lockers. Those users remained free to download and experience those infringing copies from MP3tunes’ servers.

MP3tunes’ users exclusively used MP3tunes’ servers to download, store, and playback infringing works. MP3tunes continued to provide locker services to its users even though it knew they had unlawfully downloaded EMI’s protected material. More particularly, MP3tunes allowed users to continue to store and access those works on its servers. Robertson, a named defendant in this action, is directly liable for the songs he personally side loaded from unauthorized sites.

EMI’s motion for summary judgment on its claim of contributory copyright infringement against MP3tunes and Robertson for songs noticed in EMGNA’s and EEW’s takedown notices and not removed from user lockers was granted. EMI’s motion for summary judgment on its claim of direct infringement against Robertson for the songs he personally sideloaded from unauthorized sites was granted. EMI’s motion for summary judgment was denied in all other respects. MP3tunes and Robertson’s motion for summary judgment on its defense under the DMCA safe harbors was granted except with respect to songs noticed in EMGNA’s and EEW’s takedown notices and not removed from user lockers. MP3tunes and Robertson’s motion for summary judgment was denied in all other respects.