Capitol Records, Inc. v. MP3Tunes, LLC
| Decision Date | 25 October 2011 |
| Docket Number | No. 07 Civ. 9931(WHP).,07 Civ. 9931(WHP). |
| Citation | 821 F.Supp.2d 627,2011 Copr.L.Dec. P 30146,101 U.S.P.Q.2d 1093 |
| Parties | CAPITOL RECORDS, INC. et al., Plaintiffs, v. MP3TUNES, LLC et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Andrew H. Bart, Esq., Jenner & Block LLP, New York, NY, for Plaintiffs.
Gregory P. Gulia, Esq., Duane Morris, LLP, New York, NY, for Defendants.
AMENDED MEMORANDUM & ORDER
Plaintiffs, EMI, Inc. and fourteen record companies and music publishers (collectively, “EMI”), bring this copyright infringement action against Defendants MP3tunes, LLC (“MP3tunes”) and Michael Robertson (“Robertson”). All parties move for summary judgment. For the following reasons, EMI's motion is granted in part and denied in part and MP3tunes and Robertson's motion is granted in part and denied in part.
Robertson is an online music entrepreneur familiar with high-stakes copyright litigation. Years ago, he founded MP3.com, an entity which was the subject of a copyright infringement action in this District. See UMG Recordings, Inc. v. MP3.Com, Inc., 92 F.Supp.2d 349 (S.D.N.Y.2000). MP3.com offered users online access to music if they could demonstrate they already owned the same music on CD. Various record labels brought suit and a multi-million dollar judgment was entered against MP3.com for copying thousands of music files. UMG Recordings, Inc. v. MP3.Com, 56 U.S.P.Q.2d 1376 (2000). In the wake of that judgment, MP3.com was sold and its locker service abandoned. MP3tunes—the subject of this litigation—is Robertson's current foray into online music services.
Robertson founded MP3 tunes in February 2005 and launched the website MP3tunes.com to sell independent artists' songs in the mp3 file format. (Declaration of Andrew H. Bart, dated Oct. 29, 2010 (“Bart Decl.”) Exs. 2–5, 12–13.) In the fall of 2005, MP3tunes added a storage service allowing users to store music files in personal online storage “lockers.” (Bart Decl. Exs. 5, 6, 12, 14.) Songs uploaded to a user's locker could be played and downloaded through any internet-enabled device. (Plaintiffs' Statement of Undisputed Facts (“PSUF”) ¶ 5.) MP3tunes offers free lockers with limited storage space and premium lockers with expanded storage for a subscription fee. (PSUF ¶ 6.) Over 300,000 users have signed up for a locker. (PSUF ¶ 6.) 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. (PSUF ¶ 7.) 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. (PSUF ¶ 10.)
MP3tunes uses a standard algorithm known as a Content–Addressable Storage system to store music files on its servers. (Defendants' Statement of Undisputed Facts (“DSUF”) ¶ 37.) Based on the sequence of data bits in a particular music file, the algorithm creates an identification number called a hash tag. (DSUF ¶ 40.) If different users upload the same song containing identical blocks of data to MP3tunes' servers, those blocks will be assigned the same hash tag and typically saved only once. (DSUF ¶ 41, 46.) If a user plays or downloads a song from a locker, the storage system uses the hash tags associated with the uploaded song to reconstruct the exact file the user originally uploaded to his locker. (DSUF ¶¶ 46–47.)
MP3tunes owns and operates a second website located at www. sideload. com. That website allows users to search for free song files on the internet. (PSUF ¶ 8.) Like other search engines, a user can enter keywords (e.g., “Sinatra” or “Watchtower”) and Sideload.com returns a list of potential matches. (PSUF ¶ 16.) That list is generated by searching an index or list of websites with free song files and cross-referencing the keywords with information associated with each song file. (Declaration of Ellis Horowitz, dated October 29, 2010 (“Horowitz Decl.”) ¶¶ 22–23.) The index is maintained on MP3tunes' servers. (Horowitz Decl. ¶ 23.) 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. (Horowitz Decl. ¶¶ 23–24.) If the user has a locker on MP3tunes.com, Sideload.com displays a link that if clicked, will “sideload” (i.e., download) the song from the third-party website and save it to his locker. (Horowitz Decl. ¶ 24.) Sideload.com is free as is storage of sideloaded-songs in MP3tunes.com lockers. MP3tunes keeps track of the sources of songs in its users' lockers. (PSUF ¶ 71d.) Thus, MP3tunes can identify the third-party websites from which users copied songs to their lockers. Apart from its search function, Sideload.com servers automatically generate lists of “Most Popular,” “Featured,” and “New” songs that users can browse. (PSUF ¶ 17.)
Sideload.com also offers users free Sideload Plug-in software. (PSUF ¶ 9.) 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 Sideload.com. (PSUF ¶¶ 9–10.) 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 Sideload.com's index of searchable songs. (PSUF ¶ 11.) Information associated with the song, such as artist, album, title, and track is automatically stored on a “Track Details” page, and the information becomes part of the searchable index. (PSUF ¶ 18; Horowitz Decl. ¶ 27.) From then on, Sideload.com returns a potential match whenever any other user searches for that song on Sideload.com by entering keywords that match the song file. (Horowitz Decl. ¶ 27.) Thus, as users discover free songs on the internet, the number of songs available through Sideload.com 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. (PSUF ¶ 71b.) 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. (PSUF ¶ 86.)
MP3tunes' executives, including Robertson, have personal accounts with MP3tunes and sideload songs from various third-party websites. (PSUF ¶¶ 41a-g.)
In October 2006, MP3tunes' program LockerSync began allowing users to retrieve and display relevant album cover art while uploading or playing a song from their lockers. (PSUF ¶¶ 26–27.) If cover art was not part of a music file or stored on a user's computer, LockerSync retrieved the cover art from Amazon.com and displayed a link to that website. (PSUF ¶ 28.) MP3tunes is licensed to display cover art from Amazon.com for the “principal purpose” of driving traffic to Amazonxom's website. (PSUF ¶ 34.)
Before users activate an MP3tunes locker, they must agree to abide by MP3tunes' policy prohibiting the storage of content that infringes copyrights. (DSUF ¶ 49.) Users must also acknowledge MP3tunes' right to sever its relationship with repeat infringers. (DSUF ¶¶ 57–58.) Sideload.com does not impose similar conditions for use, but MP3tunes places links to its anti-infringement policy on both Sideload.com and MP3tunes.com. (DSUF ¶ 59.)
MP3tunes registered an agent with the Copyright Office to receive notices of alleged infringement from copyright owners. (DSUF ¶ 54.) MP3tunes displays the contact information of its agent on both of its websites. (DSUF ¶ 55.)
On September 4, 2007, MP3tunes received a takedown notice from non-party EMI Music Group North America (“EMGNA”) identifying 350 song titles and web addresses that allegedly infringed EMI's copyrights. (PSUF ¶ 26; Bart Decl. Ex. 24.) EMGNA also provided a list of EMI artists and demanded that MP3tunes “remove all of EMI's copyrighted works, even those not specifically identified.” (Bart Decl. Ex. 24.) 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. (DSUF ¶ 69.) In addition, by letter dated September 13, 2007, MP3tunes asked EMGNA to identify any other infringing links. (DSUF ¶ 72.) EMGNA declined to identify other links and asserted that its representative list was sufficient to obligate MP3tunes to takedown all other infringing material. (DSUF ¶ 73.)
On October 25, 2007, MP3tunes received two additional takedown notices: another from EMGNA and one from non-party EMI Entertainment World (“EEW”). (PSUF ¶ 26; Bart Decl. Exs. 25–26.) Each notice identified specific infringing songs and URLs and demanded that MP3tunes takedown all other EMI copyrighted works. (Bart Decl. Exs. 25–26.) Once again, MP3tunes removed the specific links on Sideload.com but did not remove any content from users' lockers. (DSUF ¶ 76.) MP3tunes reiterated its earlier request that EMGNA and now EEW specifically identify any other infringing links. (DSUF ¶ 76.) Neither EMGNA nor EEW responded. Rather, on November 9, 2007, EMI filed this lawsuit.
EMI contends that it owns or controls copyrights in 3,189 sound recordings, 562 musical compositions, and 328 images of album cover art that are at issue on this motion. (PSUF ¶¶ 1–3.)
To prevail on a motion for summary judgment, the moving party must demonstrate each essential element of its infringement claim or defense. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also ...
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