NY Judge: There's no way to tell if free songs on the Internet are illegal

New York District Court Judge William H. Pauley, III, has determined that MP3tunes falls under the safe harbor provisions in the Digital Millenium Copyright Act (DMCA), protecting it from a four-year old copyright infringement lawsuit from record label EMI and its subsidiaries.

After a multimillion dollar lawsuit by record labels more than ten years ago, MP3.com founder Michael Robertson sold off the site and launched MP3tunes.com, which was designed to help indie artists sell their music. In fall 2005, it added a storage service letting users store files in personal online storage lockers, and songs uploaded to these lockers could be played and downloaded through any web-connected device.

The service grew to more than 300,000 users, and launched services LockerSync, which let users auto-upload their local mp3s to the service, and the "Webload" feature which let users transfer music from one web address to their locker. A related service owned by Robertson is sideload.com, basically a free content search engine that ties into mp3tunes lockers.

Record labels EMI, EMGNA, and EEW sent takedown notices to MP3tunes in 2007 for around 350 copyrighted songs that were both featured on Sideload and contained in users' online lockers. All links were removed from sideload, but user content in their lockers were not. That was the basis for this lawsuit.

"EMI would have this Court construe the terms 'free,' 'mp3,' or 'file-sharing' as tantamount to 'red flag' knowledge of infringement. But those terms are ubiquitous among legitimate sites offering legitimate services," Pauley's ruling says. "Moreover, adopting EMI's view would undermine Congress' goal of fostering development and innovation of internet services. Indeed, as part of its innovative marketing, EMI itself regularly distributes works on the Internet for free. Because of these activities, EMI's executives concede that internet users, including MP3tunes' users and executives, have no way of knowing for sure whether free songs on the Internet are unauthorized."

"In sum, there is no genuine dispute that MP3tunes may claim safe harbor protection for EMI works stored on MP3tunes.com, and EMI works linked to Sideload.com. However, MP3tunes does not qualify for safe harbor protection for songs sideloaded from links identified in EMGNA's and EEW's takedown notices which it failed to remove from user lockers."

Pauley concluded that the takedown notices that went unheeded make Mp3tunes' hosting of certain mp3s an act of "contributory copyright infringement," and that songs Robertson had personally sideloaded from unauthorized sites was direct infringement, but all other claims (and users) were protected under DMCA.