The website MP3tunes.com is long gone now, but a legal battle between the EMI record label and MP3tunes founder Michael Robertson slogs on. The site, created as a kind of digital music locker, shuttered in 2012, but EMI still pushed forward with its lawsuit. In 2014, following a jury trial, Robertson and MP3tunes were slapped with a verdict of $41 million plus punitive damages, finding the CEO personally liable for copyright infringement on the site. The judge later whittled damages down to $12.2 million, following post-trial motions. Both sides appealed elements of the judgment.
Now, Robertson has lost his best chance for a comeback. In an opinion (PDF) released yesterday, a panel of judges at the US Court of Appeals for the 2nd Circuit not only didn’t clear MP3tunes of the copyright charges, it found that the district court had been too lenient when it found that some of the website’s behavior was protected by the Digital Millennium Copyright Act’s “safe harbor” provisions.
The DMCA provides a safe harbor from copyright lawsuits for websites that follow certain guidelines and assist copyright owners in stopping infringement. That includes having policies that terminate ”repeat infringers,” which MP3tunes did more than 150 times. EMI lawyers said that Robertson blew off other obvious infringers, but on that issue, the district court judge sided with Robertson, holding that users who used the website’s “sideload.com” search engine to hunt for freely available MP3 files “for their personal entertainment” couldn’t be repeat infringers.
The appeals panel disagreed.
“All it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use,” wrote …