Questions Remain Up In The Air After Partial Victory For Cloud Music Service

Questions Remain Up In The Air After Partial Victory For Cloud Music Service

Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

A New York court has recently ruled against EMI Music’s claims that online music provider, MP3Tunes’s techniques violate the 1998 Digital Millenium Copyright Act (DMCA).  The ruling moves one step further in parsing out a legal grey area regarding how the copyright rules set out in the DMCA apply to new and emerging cloud music services, but could potentially create other legal questions.

MP3Tunes is a service which allows users to store music files, purchased or not, in an online digital locker providing access from various personal internet-connected devices.  Record label, EMI, attempted to argue that the service caused routine violations of its copyrights.  A major issue in the case was whether or not MP3Tunes was covered by the “safe-harbor” provision of the DMCA which safeguards such services from any liability for copyright infringement so long as they promptly comply with takedown notices issued by copyright holders.

EMI tried to argue that even if MP3Tunes was protected by the safe harbor provision they failed in their duty to ensure quick response to DCMA takedown notices, block repeat infringers from using the service, and sweep their service for infringing files.  Nevertheless, US District Judge William Pauley was mostly satisfied with MP3Tunes’ conduct with regards to these matters in declaring that only in a few instances did MP3Tunes fail in its duties imposed by the DMCA.

Yet, it was only a partial victory for MP3Tunes as they could still be on the hook for millions of dollars in damages.  EMI claimed that MP3Tunes operated the website,, which sought out free music files and loaded the content into music lockers, some of which infringed EMI’s copyrights.  MP3Tunes removed the infringing links at sideload, but failed to remove all of the pirated music in MP3Tune lockers that had originated from the site.  The judge explained that the removal of the infringing links was insufficient as the files still existed in MP3Tunes lockers.  Statutory damages for willful infringement range from $750 to $150,000 and with a claim of approximately 500 pirated works, EMI could still win up to $75 million in future proceedings.

MP3Tunes founder, Michael Robertson, has called the case a 99% victory for unlicensed cloud music services.  EMI had initially claimed over 33,000 instances of infringement which were largely dismissed in the case.  For the remainder of works still in question, Robertson is confident that this particular finding was inconsistent with the judge’s overall ruling.  He therefore plans to appeal.

Despite the claims of victory, Robertson has only won safe harbor protection over some ways the service operated, but not for others.  The precedent requires MP3Tunes to satisfactorily remove infringing content from its service.  Robertson found this to be in conflict with the past ruling in Viacom v. Youtube which required the issuing of takedown notices by stating that the judge created new law in imposing a more exigent interpretation of the DMCA.

As a result, the legal standard established by Justice Pauley could have an impact on other service providers of similar unlicensed cloud services.  Robertson also noted that the new standard could conceivably require Google to remove infringing materials from personal Gmail accounts.  The duty imposed by the DMCA on cloud computing, even in cases of safe harbor protection, is still up in the air for the foreseeable future.