EMI Loses Yet Again In Its Quixotic War With Michael Robertson And MP3Tunes

from the the-definition-of-insanity dept

Thu, Nov 3rd 2011 12:20pm — Mike Masnick

After losing pretty badly on most of the key legal points in its silly lawsuit against Michael Robertson and MP3Tunes, EMI doubled down and told the judge he made two mistakes in his initial ruling, and asked him to reconsider both. However, in an amended ruling (embedded below) Judge William Pauley has not only rejected EMI's claims, but clarified his arguments even further, potentially making any appeal from EMI that much harder.

The two key points, as we discussed two months ago, were whether or not pre-1972 sound recordings were subject to the DMCA... and whether or not MP3Tunes really had a policy of dealing with repeat infringers. The pre-1972 issue is really, really important to the record labels. As we've discussed, pre-1972 sound recordings are not subject to federal copyright law, but rather more restrictive state copyright laws. Whether or not such songs are covered by the DMCA is a key element for the labels in planning their legal strategy. In Universal's lawsuit against Grooveshark, for example, it's just focused on pre-1972 songs, to try to cut off Grooveshark's DMCA safe harbors argument. But the court goes into great detail why that's a bogus argument, and that the DMCA's safe harbors were clearly intended to cover all copyrighted works, even those not covered by federal copyright law:

EMI's interpretation of 301(c) would eviscerate the purpose of the DMCA. "Where an examination of the statute as a whole demonstrates that a party's interpretation would lead to 'absurd or futile results ... plainly at variance with the policy of the legislation as a whole,' that interpretation should be rejected." Yerdon v. Henry,.... As discussed, the DMCA was enacted to clarify copyright law for internet service providers in order to foster fast and robust development of the internet. Limiting the DMCA to recordings after 1972, while excluding recordings before 1972, would spawn legal uncertainty and subject otherwise innocent internet service providers to liability for the acts of third parties. After all, it is not always evident (let alone discernible) whether a song was recorded before or after 1972. The plain meaning ofthe DMCA's safe harbors, read in light of their purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to February 15, 1972.

On the second key issue, EMI's filing for reconsideration sounded stronger, when only seeing EMI's side of the story. It claimed that the judge misconstrued certain claims by Robertson and MP3Tunes employees, suggesting that the company didn't really stop repeat infringers. However, it appears that EMI's quotes were taken incredibly out of context, and the judge had no problem putting them back into context and seeing that MP3Tunes did, in fact, deal properly with repeat infringers. In fact, the judge points out directly that EMI "mischaracterizes" Robertson's deposition testimony. Having a judge catching you trying to mislead him... is probably not good for your case.

But, perhaps even more importantly, the judge makes it clear that with a music locker like MP3Tunes, there's no legal reason why the company should automatically cut off someone who is a repeat infringer, since all uploads are for personal use, and not to the wider internet.

Blatant infringers typically are those who upload or post unauthorized content, allowing others to experience or copy the work. See Viacom v. YouTube.... (finding reasonable a policy that terminated users who uploaded content after warning); see also 10 Grp., Inc. v. Veoh Networks ... (same). The record reveals that MP3tunes' users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between (1) users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and (2) users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they download violates the copyrights of others.

The court also reminds that even if MP3Tunes execs discussed some sites where people accessed files and moved them into MP3Tunes own storage, and questioned whether or not they were infringing, they had no way of knowing, officially, if those files were actually infringing:

For example, MP3tunes employee e-mails reveal discussions about the legitimacy of some third-party sites and, on at least one occasion, a recommendation that a site be removed from Sideload.com. But ultimately there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on Sideload.com were unauthorized. (See Bart Decl. Exs. 64-66.) While knowledge is not an element of copyright infringement, it is relevant to a services provider's decision whether appropriate circumstances exist to terminate a user's account.

This is important for a number of reasons too, including the standard claim from copyright system defenders, insisting that it's "obvious" when something is infringing and sites should have to remove the content. As this court properly recognized, it's not at all obvious. Content may appear to be infringing, but may have been uploaded by an authorized person. Or there may be fair use. Courts determine what is and what is not infringing -- and random websites are in no position to do so, no matter how much the legacy entertainment industry likes to pretend otherwise.

Amusingly, in Robertson's own blog post about this ruling (linked above), he suggests a reason for EMI's decision to continue with this really pointless lawsuit: EMI exec turnover and upheaval is the perfect situation for lawyers to rack up billable hours, because no one's paying attention:

From the outset, many have been puzzled by EMI's decision to target MP3tunes as well as me personally with this lawsuit but it becomes clearer when one understands the chaos of EMI's management and their relationship to an outside legal firm. An outside corporation performs all the litigation work for EMI. This firm doesn't care if they win or lose the case because they get paid to fight. The more they fight, the more they get paid. This explains why in this latest move they went back to the same Judge with the same evidence telling him he got it wrong and asking him to reverse his findings. Unsurprisingly this rarely works, but it's a chance for more billable hours and to increase their bills to more than $6 million. The fact that it actually makes an appeal more difficult for EMI is a plus because that means more time will have to be spent on those creating even greater riches for the attorneys.

Extensive turnover in EMI's management means nobody is there to oversee the litigation costs or strategy. Currently EMI is owned by the megabank Citigroup who is likely unaware of the runaway legal expenses or fruitless strategy since they are concerned only with finding a buyer for EMI to get their multi-billion dollar investment back. The litigation firm senses this leadership vacuum and operates unimpeded taking every opportunity to drag out what is now a 4 year legal process with countless motions. An unlimited legal budget benefits only the lawyers not EMI. Maybe it will take a new owner to rein in the attorneys, but any objective analysis shows they are hurting EMI more than helping.

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Filed Under: copyright, dmca, michael robertson, safe harbors, sound recordings
Companies: emi, mp3tunes

39 Comments

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A Guy (profile), 3 Nov 2011 @ 12:30pm

In a perverse way, I think these lawyers are actually doing us a favor. Their continued fruitless litigation of this issue will provide a good precedent for all moving forward.

Because it has been argued so thoroughly, I suspect it's a more convincing precedent than it would have been had they just dropped it and moved forward elsewhere.

As an added bonus, they are draining EMIs legal coffers.

WTG expensive, incompetent lawyers.
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Rikuo (profile), 3 Nov 2011 @ 12:42pm

Ouch...actually calling out the lawyers as wasting their client's money? Gotta love that ^^
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surfer (profile), 3 Nov 2011 @ 12:43pm

and they have the balls to call us thieves..
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Anonymous Coward, 3 Nov 2011 @ 12:55pm

Re:
Which is kind of nice - I like to hear a judge admitting that a large part of the judicial system's purpose is to help lawyers fill their wallets.
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tebee (profile), 3 Nov 2011 @ 12:59pm

Litigate hopeless cases just to get more billable hours?

Surly those paragons of virtue that are the legal trade would not do a thing like that? I, mean, these are the very same people our judiciary are appointed from.....
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Not a Coward, 3 Nov 2011 @ 1:00pm

Re:
They don't have balls, why do you think they post here as Anonymous Cowards?
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Anonymous Coward, 3 Nov 2011 @ 1:11pm

Re: Re:
You are correct some of them are women.
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Not a Coward, 3 Nov 2011 @ 1:20pm

Re: Re: Re:
Cowardliness is unisex
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out_of_the_blue, 3 Nov 2011 @ 1:25pm

It's true that nothing is /obvious/ to a lawyer or judge.
Nonetheless, a quick glance through a file that find it's a recent movie is certain proof of infringement.
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Anonymous Coward, 3 Nov 2011 @ 1:29pm

Re: Re:
That was actually from Michael Robertson blog, the judge didn't say that.
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Not a Coward, 3 Nov 2011 @ 1:31pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
All right, post the proof
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Anonymous Coward, 3 Nov 2011 @ 1:32pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
and what does /this/ mean?
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Anonymous Coward, 3 Nov 2011 @ 1:33pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
Unless it's fair use.
...or authorized by the rights-holder.
...or otherwise legal under applicable local laws.
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Anonymous Coward, 3 Nov 2011 @ 1:33pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
You heard it here first from our own OotB, absolutely no legal digital copies of recent movies exist anywhere, ever. So why bother with questions of rights when we already know the answer?
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Anonymous Coward, 3 Nov 2011 @ 1:35pm

Re: Re: It's true that nothing is /obvious/ to a lawyer or judge.
I think he does that instead of using the clearly available html tags for italics.
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Anonymous Coward, 3 Nov 2011 @ 1:37pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
So if there is a recent movie anywhere it is certain proof of infringement?

My friends and I released a movie for free recently. I promise no one is infringing on it. We're doing it for the exposure. Please reword your argument so that it makes sense. I've seen you rail at people for leaving out substance. Put your money where your mouth is and show us a little bit of that same substance in your posts.
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A non-mouse, 3 Nov 2011 @ 1:56pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
"Nonetheless, a quick glance through a file that find it's a recent movie is certain proof of infringement."

Wrong. All you've "proven" is that it's a recent movie. It could very easily be a 100% legal, non-infringing copy (those do exist, after all). Any random person taking "a quick glance through the file" would have no way of determining whether or not it's legal. That's for a court (and only a court) to decide.
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A non-mouse, 3 Nov 2011 @ 2:10pm

"Nonetheless, a quick glance through a file that find it's a recent movie is certain proof of infringement."

I also find it interesting that, in response to a post about "mp3tunes" and "sound recordings", you instead choose to use "a recent movie" as being obvious and certain proof of infringement. Perhaps you realized how ridiculous it would be to suggest that any/all sound recordings are infringing? Sorry, but using "movie" instead of "sound recording" doesn't make it any less ridiculous.
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Anonymous Coward, 3 Nov 2011 @ 2:14pm

While MP3tunes might have gotten a pass here, judging by what the judge said about "blatant infringers", that doesn't bode well for some other sites.
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The eejit (profile), 3 Nov 2011 @ 2:17pm

Re: Re: Re: Re:
It's called cowardice, and it's not unisex, it's omnisex.
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Atkray (profile), 3 Nov 2011 @ 2:17pm

Re: Re: Re: It's true that nothing is /obvious/ to a lawyer or judge.
I thought it was just to annoy people.
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Anonymous Coward, 3 Nov 2011 @ 2:24pm

Re: Re: Re: Re:
Cowardliness is omnisex.

Let's not be exclusionary.
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JMT (profile), 3 Nov 2011 @ 2:24pm

Re: It's true that nothing is /obvious/ to a lawyer or judge.
What's the legal definition of "recent"?
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Anonymous Coward, 3 Nov 2011 @ 2:25pm

Re: Re: Re: Re: Re:
Awwww... the eejit stole my joke. :(
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The Devil's Coachman (profile), 3 Nov 2011 @ 2:29pm

EMI......do they make anything anymore?
Or is their entire business model designed around endlessly repetitive, repeatedly failing litigation? Or maybe they're just a bunch of douche bag jackwagons who should simply be beaten with iron bars until their eyebrows are at the level of their ankles?
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Anonymous Coward, 3 Nov 2011 @ 2:36pm

The problem today is that there is no ethics for the idiots in suits this is just a game where you do whatever is necessary to win at any cost.

Those people abused the public trust and now is time to pay up.
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surfer (profile), 3 Nov 2011 @ 3:02pm

Re: Re: It's true that nothing is /obvious/ to a lawyer or judge.
copyfraud is so obtuse, and complexified, I just don't care anymore, if it's on usenet, it's authorized.

according to copyfraud, if you change the content at least 30%, then it is a new copyrightable object. ripping the unskippable previews, and the commercial bullshit makes it a new object, and copyright of the ripper.

ironically, and probably missed by most copyfrauders is the fact that when we rip your shit, and post, we leave in the initial credits and the post credits, to give you credit. in fact, that's all you need, is the credit, we leave that intact.

YOU GOT PAID ALREADY!!
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Anonymous Coward, 3 Nov 2011 @ 3:02pm

Re: Re: Re:
Oh... damn.
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Pixelation, 3 Nov 2011 @ 3:30pm

The next Righthaven
EMI the next Righthaven.

Break out the popcorn...
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Anonymous Coward, 3 Nov 2011 @ 4:59pm

I believe the title to the article is somewhat misleading in that it suggests the plaintiff's had their heads handed to them. More accurately, this was a pre-trial hearing on motions by the plaintiffs and defendants for summary judgement, with the plaintiff's prevailing on some, the defendants on others. Triable issues still remain, but whether or not the case proceeds to trial is dependent upon the parties.

Re pre-1972 sound recordings, the judge did note that this was an issue of "first impression", which means that no caselaw could be found addressing this specific issue. While the judge did hold in favor of the defendants by opining that the "Safe Harbor" provisions of 17 USC 512 applied to pre-1972 sound recordings (which are the exclusive province of state law), I believe the judge likely committed reversible error when he interpreted 512 as being open-ended. While Congress does have the ability in certain circumstances to preempt state law, cases like Atascadero and Florida Prepaid make it quite clear that this is a power that is severely constrained. I was struck by the judge's failure to take note of this in his holding because it is a fundamental tenent of federalism.
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Anonymous Coward, 3 Nov 2011 @ 5:12pm

Lawyers manipulating companies. Companies manipulating governments. Governments manipulating laws.
It's like an endless loop of collusion and corruption.
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athe, 3 Nov 2011 @ 5:36pm

Re: Re: It's true that nothing is /obvious/ to a lawyer or judge.
Life + 95 years?
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Anonymous Coward, 3 Nov 2011 @ 8:29pm

Meanwhile At A Citigroup Office
Citi: The price is two billion dollars.

Potential Buyer: Well, I am a little uncertain that the asset is actually worth that much. After all, EMI has recently been making losses, so I think ...

Citi: The price is two billion! Did you not hear me the first time?

Potential Buyer: I heard you just fine, however, in order for me to buy the asset, I need to be convinced that I am not paying an excessive price. My shareholders would rightly ...

Citi: TWO BILLION DOLLARS, JACKWAD!!!

Potential Buyer: Do not get hostile, or I will walk out.

Citi: IT IS TWO BILLION DOLLARS AND NOT A PENNY LESS, YOU WHINING SHIT!!!

Potential Buyer: **Walks out**

Citi: (Thinks) How are we gonna sell this pile of EMI?
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Anonymous Coward, 4 Nov 2011 @ 4:49am

Re: EMI......do they make anything anymore?
Ah, yes; EMI, the SCO of the music industry. Gotta love it.
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Anonymous Coward, 4 Nov 2011 @ 7:13am

Re:
Are you pulling a Righthaven act here?
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iBelieve, 4 Nov 2011 @ 8:21am

Uploaders vs Downloaders
Uploading infringing content, willfully and knowingly for whatever reason, is at least one million times more harmful than downloading infringing content, willfully and knowingly except for further uploading of said infringing content onto the internet. In that both actions involve freeloading, admittedly, it is by no surprise that the internet is now a jubulent lawyer's playground. That is one observation.
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Anonymous Coward, 4 Nov 2011 @ 8:23am

Re: Uploaders vs Downloaders
~jubilant, sorry
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Anonymous Coward, 4 Nov 2011 @ 8:51am

What is infringing
I used to work at one of the majors and part of my responsibilities were to setup systems to identify infringing content on user uploaded content sites. It is often very, very difficult, even for the company, to determine if something is or is not authorized. Their own systems are so jacked up that it often requires an incredible amount of effort to determine if the company even still owns the copyright on a particular song. It is a complex problem. Is it a live recording and if so, do we have rights to those recordings or does the venue? Perhaps the artist has no distribution deal for live recordings with the company. Was the song released on multiple albums? Perhaps a compilation or soundtrack? Who owns it then? Maybe the soundtrack was released by another major. Was the track licensed/authorized for use by the artist or label without passing that information on to the systems used to identify infringement?

If the content owner has such a hard time determining for sure who owns content how can it be reasonably be expected that a third party service can make this determination?
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Brendan (profile), 6 Nov 2011 @ 12:34am

Re: Re: Re: It's true that nothing is /obvious/ to a lawyer or judge.
I've started using it for italics when commenting from my phone. Accessing symbols for html is a pain in the ass. I can get at *stars*, /slashes/ and _underscores_ more easily.
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