The US Court of Appeals for the Second Circuit vacated a grant of summary judgment that a defendant had a reasonably implemented repeat infringer policy and therefore qualified for safe harbor protection under the Digital Millennium Copyright Act (DMCA) safe harbor provision. In doing so, the Second Circuit used a broader definition of “repeat infringer” than the district court. EMI Christian Music Grp., Inc., et al. v. MP3tunes, LLC, et al., Case No. 14-1048 (2d Cir., Oct. 25, 2016) (Lohier, J).

A group of record and music publishing companies filed a copyright infringement lawsuit against MP3tunes, alleging that MP3tunes, along with its websites MP3tunes.com, which primarily serves as a locker service for storing digital music, and sideload.com, which allows users to search for free music on the internet, infringed plaintiffs’ copyrights in thousands of sound recordings and musical compositions. Sideload.com also allows its users to upload music to their MP3tunes.com “locker,” which was also searchable.

The DMCA protects internet service providers from liability when users upload copyrighted content, while requiring that such service providers remove the material if they receive notice or otherwise become aware of the infringement. To qualify for the safe harbor protection, a service provider must have “adopted and reasonably implemented, and inform[ed] subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers” (17 USC § 512), among other requirements.

In its grant of a partial summary judgment to the defendant, the district court found that MP3tunes had a reasonably implemented repeat infringer policy and therefore qualified for protection under the safe harbor provision. The district court further found that “a user who downloads or copies songs from third‐party sites for their personal entertainment could not be a ‘repeat infringer.’” Plaintiffs appealed. 

The Second Circuit rejected the district court’s narrow definition of “repeat infringer,” concluding that “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.” Looking at the ordinary meaning of the term, the structure and context of the DMCA, and the legislative history, the Court determined that limiting the term “repeat infringer” to willful infringements is too narrow, and that a “repeat infringer” does not need to know of the infringing nature of its online activities or to upload rather than download content.