Repeat Infringers Can Be Mere Downloaders, Court Rules

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A 10-year-old copyright case has prompted an interesting opinion from a US appeals court. In determining the nature of a "repeat infringer" (which service providers must terminate to retain safe harbor), the court found these could be people who simply download infringing content for personal use.

copyright-bloodA case that recording labels EMI and Capitol filed against the long-since defunct music service MP3Tunes has been rolling on for nearly a decade.

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, and together got mauled in court.

MP3Tunes went bankrupt in 2012 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 yesterday the 2nd Circuit Court of Appeals handed down an opinion that should attract the attention of service providers and Internet users alike. The most interesting points from a wider perspective cover the parameters which define so-called ‘repeat infringers’.

Following an important case involving 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.

“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’,” the opinion reads (pdf).

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.

“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,” its opinion reads.

“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 notion that the term ‘repeat infringer’ can now be applied to anyone who knowingly (or unknowingly) downloads infringing content on multiple occasions is likely to set pulses racing. How it will play out in practical real-world scenarios will remain to be seen, but it’s certainly food for thought.

For those looking for more detail, Hollywood Reporter has a report covering the specifics in the MP3Tunes case, which will now head back to the District Court for damages to be determined and/or another trial.


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