March 28, 2014

A Jenner & Block team, led by Partners Andrew H. Bart and Luke C. Platzer, has won a significant victory for firm client EMI Recorded Music (now owned by UMG Recordings, Inc.) in a long-running and complex copyright infringement case relating to the application of the Digital Millennium Copyright Act (DMCA) to the operations of a pair of online music sites.  On March 19, 2014, a federal jury in New York found MP3tunes, Inc. (a now-bankrupt online music storage locker service) and its former CEO Michael Robertson liable for infringing more than 2,000 copyrights in sound recordings, compositions and cover art owned by EMI, as well as by EMI Music Publishing Ltd., a co-plaintiff in the litigation.

The jury found that Robertson had infringed a series of copyrights personally through his use of the services.  The jury also found that MP3tunes and Robertson were both secondarily liable for similar personal infringements by several of MP3tunes’ executives.  Further, it found that both defendants were liable for the infringement of cover art images owned by the label plaintiffs.

Finally, the jury found that MP3tunes had “red flag” knowledge of specific acts of infringement on its service and had been “willfully blind” to such infringements.  The jury held Robertson secondarily liable for those infringements as well.  The significance of the “red flag” and “willful blindness” findings is that they disqualify defendants from “safe harbor” protection under the DMCA.  The findings of willful blindness were the first time a jury had disqualified a defendant from DMCA “safe harbor” protection on this basis since the standard was set by the Second Circuit in Viacom v. YouTube two years ago.

On March 26, the jury followed up its liability award by awarding the label plaintiffs approximately $41 million in damages and awarding the publishing plaintiffs an additional $7 million to $8 million.  The statutory awards, with the exception of the awards on Robertson’s personal infringements, ranged from $10,000 to $30,000 per work infringed.

The lawsuit was filed in 2007.  In 2011, Judge William Pauley of the Southern District of New York, while granting summary judgment to UMG on certain issues of direct and contributory infringement, also ruled that MP3 qualified for “safe harbor” protection under the DMCA.  However, in February 2013, Judge Pauley reconsidered that ruling, recognizing that the Second Circuit’s decision in Viacom v. You Tube required the district court to engage in explicit fact-finding on the issue of willful blindness before granting a party “safe harbor” protections.  That set the stage for this month’s trial.

This victory was a team effort by members of the firm’s Content, Media and Entertainment Practice.  In addition to Andy and Luke, Associate J. Douglas Wilson worked tirelessly along with Associates Rochelle P. Lundy, Lindsay W. Bowen and Tobias C. Berkman and Paralegal Coordinator Judy S. Lao.  This victory comes within months of other CM&E victories in the Aereo, Hotfile, Grooveshark and Fung litigations and continues the firm’s notable achievements in protecting content creators and owners facing the ever-changing technology landscape.