Repeat Infringers Can Be Mere Downloaders, Court Rules

In determining the nature of a “repeat infringer” (which service providers must terminate to retain safe harbor), a US appeal court found these could be people who simply download infringing content for personal use.

A case that recording labels EMI and Capitol filed against the long-since defunct music service MP3Tunes is nearly 10 years old.

MP3Tunes was originally a site selling MP3s from non-major label artists. It later added a locker service which allowed users to store their MP3s online and play them remotely on Internet-enabled devices.  MP3Tunes also ran, a service which enabled users to search for MP3s on the web and add them to the MP3Tunes service. Many of these MP3s infringed copyright.  MP3Tunes, and owner Michael Robertson, both got sued.  In 2012, MP3Tunes went bankrupt and following a 2014 trial, the jury awarded the plaintiffs $41m in damages. Punitive damages of $7.5m were later reduced to $750,000.

The case went to appeal and the 2nd Circuit Court of Appeals handed down an opinion on which parameters define so-called ‘repeat infringers’.

One case involved music outfit BMG, piracy monetization firm Rightscorp and ISP Cox Communications.  It was broadly accepted that a repeat infringer was a subscriber who repeatedly infringed BMG’s copyrights. In that case, those were subscribers who were repeatedly caught using BitTorrent to share (upload) copyrighted music online.  The fine received by Cox in that case provided the clearest indication yet that in order to retain their ‘safe harbor’ under the DMCA, service providers must take action against such ‘repeat infringers’. However, in the opinion handed down yesterday, the Court widens the net beyond those who get caught uploading.

Noting that the District Court in the MP3Tunes case had also defined a ‘repeat infringer’ as a user who posts or uploads infringing content “to the Internet for the world to experience or copy”, the Court of Appeals adds that the same court determined that a mere downloader of infringing content could not be defined as a repeat infringer “that internet services providers are obligated to ban from their websites.”

According to the Court of Appeal, that definition was too narrow. The opinion says, “we reject this definition of a ‘repeat infringer,’ which finds no support in the text, structure, or legislative history of the DMCA. Starting with the text, we note that the DMCA does not itself define ‘repeat infringers’.”

Noting that ‘repeat’ means to do something “again or repeatedly” while an ‘infringer’ is “[s]omeone who interferes with one of the exclusive rights of a copyright,” the Court of Appeals goes on to broaden the scope significantly. The opinion says, “copyright infringement is a strict liability offense in the sense that a plaintiff is not required to prove unlawful intent or culpability, and a user does not have to share copyrighted works in order to infringe a copyright.  In the context of this case, all it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use,” adding “that a ‘repeat infringer’ does not need to know of the infringing nature of its online activities, or to upload rather than download content.”

The MP3Tunes case will now head back to the District Court for damages to be determined and/or another trial.


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