October 25, 2016

Jenner & Block, led by Partners Andrew H. Bart and Luke C. Platzer, secured a significant victory in a long-running copyright infringement case relating to the operations of a pair of online music sites when the United States Court of Appeals for the Second Circuit both affirmed a lower court’s decision that MP3tunes, LLC (a now-bankrupt online music storage locker service) and its former CEO Michael Robertson reproduced and distributed EMI’s copyrighted works without permission and significantly reinstated the accompanying jury verdict against the defendants. 

In March 2014, after a four-week trial, a federal jury in New York found MP3tunes and Michael Robertson liable for infringing more than 2,000 copyrights in sound recordings, compositions and cover art owned by EMI and EMI Music Publishing Ltd., a co-plaintiff in the litigation.  The jury awarded the plaintiffs in excess of $40 million in damages, and its finding of “willful blindness” marked the first time a jury had disqualified a defendant from DMCA “safe harbor” protection on this basis since the standard was set in Viacom v. YouTube.  On defendants’ motion for judgment as a matter of law, the district court upheld the bulk of the jury’s findings but reduced the amount of the verdict to $13 million, principally due to the district court’s decision to substantially limit the jury’s willful blindness and red flag knowledge findings.  Thereafter, both sides appealed.  After full briefing, Mr. Bart argued the appeal in January 2016.

On October 25, 2016, the appellate court reinstated the jury verdict, finding that a reasonable jury could conclude, based upon the evidence presented at trial, that MP3tunes had “red‐flag” knowledge of, or was willfully blind to, infringing activity involving specific categories of protected material.  Additionally, the Second Circuit panel reversed the district court’s determination that the defendants qualified for safe harbor protection under the DMCA, finding that the district court had erred in granting summary judgment to MP3tunes on this issue.  The panel held that the lower court had applied an unduly restrictive definition of which “repeat infringers” a service provider must terminate under such a policy, noting that (1) the DMCA does not limit the requirement to identify and terminate repeat infringers to willful or blatant conduct, and (2) that a reasonable jury could conclude that the defendants’ failure to track users who repeatedly uploaded or copied infringing files identified on DMCA takedown notices evidenced willful blindness to repeat infringement by their users. 

In addition to Mr. Bart and Mr. Platzer, Associate J. Douglas Wilson worked tirelessly on the case.

The victory was the subject of a "Shout Out" article in The AmLaw Litigation Daily.