Jury Says MP3Tunes Was 'Willfully Blind' In Building A Music Locker

from the well-there-goes-that-one dept

Thu, Mar 20th 2014 7:32am — Mike Masnick

While the Google/Viacom lawsuit over YouTube settled this week, one case that it had a direct impact on was the lawsuit of Capitol Records/EMI against MP3Tunes and its founder Michael Robertson. The entire lawsuit seemed to be yet another case involving the record labels just being generally angry about innovation, which is why it targeted Robertson personally. While MP3Tunes initially, won, the court still found that Robertson could be personally liable for songs that he had "sideloaded" himself as a part of the service.

The case then bounced around a bit, and with the appeals court ruling in the YouTube case, the judge in the MP3Tunes case withdrew the original ruling and decided to take another look. That's now resulted in a jury apparently finding that MP3Tunes was "willfully blind" to infringement. That's a troubling find on many levels. While the link above focuses on the jury also finding Robertson personally liable for "sideloading" songs, that part isn't all that surprising. Without thinking too deeply about it, it's no surprise that a jury would think that sideloading (moving songs found publicly online into a locker) might violate copyright law, even if it does raise some significant legal issues. Robertson made the rather valid point that it was impossible for him to know if the songs were infringing, especially since EMI itself was giving away songs for free, and knew that having such songs freely available increased sales. So to blame him for not knowing which songs were authorized and which were not seems unfair -- but the jury apparently disagrees.

What's much more concerning is this claim that an online locker service might be deemed "willfully blind" to infringement, even in the absence of things like DMCA notices. It raises serious questions for pretty much all cloud services that might store content, much of which may be covered by someone's copyright.

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Filed Under: copyright, dmca, michael robertson, music lockers, willfully blind
Companies: emi, mp3tunes

36 Comments

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Ninja (profile), 20 Mar 2014 @ 6:16am

Sigh...

Ford/GM/Toyota is willfully blind that their cars are being used in robberies, drug trafficking and speeding.

Model companies (as in Gisele B�ndchen type) are willfully blind to the fact they are inducing anorexia in young girls.

Basf/Dow/Dupont is willfully blind their chemicals are being used to refine drugs and produce illegal explosives.

So on.

All of those companies know their products are being used somewhere for illegal and even criminal purposes somewhere. They all take the appropriate steps into preventing it if they are warned (ie: don't sell chemicals to some extremist group directly). Should we sue them for not stopping crime altogether? So why is it different when you add "on the Internet" to the mix?
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DMNTD, 20 Mar 2014 @ 7:36am

........
Cause...de innnernet...and all that tech stuff.
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Anonymous Coward, 20 Mar 2014 @ 7:43am

"Robertson made the rather valid point that it was impossible for him to know if the songs were infringing, especially since EMI itself was giving away songs for free, and knew that having such songs freely available increased sales. So to blame him for not knowing which songs were authorized and which were not seems unfair -- but the jury apparently disagrees."

So taken songs from EMI that was FREELY given away from them is still infringement?
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Anonymous Coward, 20 Mar 2014 @ 7:52am

Sayonara, Google Music.
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Anonymous Coward, 20 Mar 2014 @ 7:54am

Viacom, Part 2
This same reasoning would also obviously apply to Youtube, as well. I could easily imagine Viacom filing a new case against Google now based on this.

The eventual endgame for the content companies is to reduce the internet to a new version of cable television, where all content is a one-way flow from them to you. No one else will be able to put anything else on the net due to legal liabilities. "Millions of channels and nothing to watch."
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jupiterkansas (profile), 20 Mar 2014 @ 7:58am

Re:
It seems their thinking is that even though EMI gave you a copy, that doesn't give you the right to make copies of their copy.
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Anonymous Coward, 20 Mar 2014 @ 8:02am

Hmmmmm. Looks like willful blindness as a business model is on the way out.
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John Fenderson (profile), 20 Mar 2014 @ 8:06am

Re:
It was never in.
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Anonymous Howard (profile), 20 Mar 2014 @ 8:08am

Re:
But record labels, movie studios sending bogus automated DMCA notices, which they know but doesn't do shit about somehow doesn't qualify as willfully blind. Double standards much?
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Anonymous Howard (profile), 20 Mar 2014 @ 8:13am

lololo
Did I hear you sing when you entered?
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zip, 20 Mar 2014 @ 8:19am

Bad link to Hollywood Reporter article
The URL underlying **a jury apparently finding that MP3Tunes was "willfully blind"** is mal-formed with an extra space in the middle.
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JEDIDIAH, 20 Mar 2014 @ 8:25am

Be careful what you wish for.
> Hmmmmm. Looks like willful blindness as a business model is on the way out.

Applied equally to meat space (as any law should be), this could have some seriously nasty implications. Bus lockers. Safety deposit boxes. Storage lockers. Home and apartment rentals.

It's like RICO on steroids with some gamma radiation added for good measure.

Maximalists want to equate some top 40 song with land or gold. Be careful what you wish for there. You may be in for a nasty shock.
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Anonymous Coward, 20 Mar 2014 @ 8:28am

What the hell does "willfully blind" even mean? The DMCA requires as a matter of practicality that if you run a service where third parties are allowed to contribute their own content, as the site operator you must not be aware of the nature of that content or you raise a "red flag" and vacate your safe harbor provisions.

This is just the latest shot in the long-running copyright battle that attempts to shift the burden of enforcing copyrights on victims, and not the owners.
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zip, 20 Mar 2014 @ 8:31am

Re: Re:
It seemed that "willful blindness" became the tobacco industry's primary operating principle, and remained so for decades, after it became clear that their product, used as intended, was killing its users.
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Anonymous Coward, 20 Mar 2014 @ 8:31am

the problem here seems to be more like the jury being willfully blind to the consequences of their decision. unfortunately, if the defending lawyer(s) didn't explain things correctly or sufficiently, this result must be expected. this is a problem with courts, including the judges, who sit on cases without having the full knowledge of exactly how things operate. the entertainment industries, however, dont care as long as they get another site/service closed down, without having to replace it with one of their own to the same level of speed and quality etc.
as for the cloud services,those sitting on the jury probably dont use it, maybe dont even know what it is, so are not bothered about it disappearing anyway.
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Anonymous Coward, 20 Mar 2014 @ 8:32am

Re: Be careful what you wish for.
would this apply to the public vs big foods.
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John Fenderson (profile), 20 Mar 2014 @ 8:36am

Re: Re: Re:
Not really. The tobacco industry wasn't willfully blind at all. They knew full well the effects of their products and lied about it.
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Anonymous Coward, 20 Mar 2014 @ 8:38am

Re:
The quickest proper meaning is "Knowing that service/item could be used for infringement, but not taking action to mitigate infringement in any way." Basically not giving 2-shits or maybe not even 1.

What it really means is... you didn't dance to our tune bitch, naf off with the negative blessings of this lawsuit!

Ciao!
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John Fenderson (profile), 20 Mar 2014 @ 8:41am

Re:
"Willfully blind" is when you are actively avoiding learning about something because you'll incur some sort of responsibility or liability if you do. It's the practice of "plausible deniability".

Legally, the principle is that is you are actively avoiding learning about something (that a reasonable person in the same position would have learned) so that you don't have to address it, that shouldn't let you escape liability.
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Anonymous Coward, 20 Mar 2014 @ 8:42am

Re:
Jury's are intentionally selected to be as stupid as possible.

People do not realize that the founders of this nation intended for jury's to be populated by people you know and have a direct stake in the case. In other words... Jury of your Peers!

Now we shit in the face of our peers and go for random idiot judgement.
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John Fenderson (profile), 20 Mar 2014 @ 8:43am

Re: Re:
"Knowing that service/item could be used for infringement, but not taking action to mitigate infringement in any way."

No, that's not what it means at all.
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Anonymous Coward, 20 Mar 2014 @ 8:44am

Re: Re:
Your definition is better than mine.

*hangs head in shame*
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Anonymous Coward, 20 Mar 2014 @ 8:46am

Re: Re: Re:
Yea, you are right... mine fits a scenario of "negligence" instead.
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zip, 20 Mar 2014 @ 9:24am

Re: Re: Re: Re:
The US tobacco companies all had an unwritten rule that senior officers were forbidden from ever talking about the health effects of cigarette smoking. Then the CEO could always say in his defense, "How was I supposed to know? No one ever told me anything about cancer" - and not be lying. (conversations with attorneys are by law confidential and privileged, so of course attorneys were used as strategic cutouts as much as possible). "Willful ignorance" was literally built into every layer of a tobacco company's corporate structure -- as expected, since these companies were literally walking a tightrope.

Of course tobacco executives all knew smoking killed people. Pretensions aside, they're not total idiots. But exactly "what they knew and when they knew it" is something that becomes very hard to prove in court as long as nothing was ever written down or openly discussed.

It's interesting that MP3tunes' jury did not buy the company's version of the tried-and-true legal strategy of the "we're just a bunch of know-nothing idiots" defense.
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Karl (profile), 20 Mar 2014 @ 9:31am

DMCA?
It's been a while since I looked at this case, so I have to ask this question.

Did MP3tunes have a DMCA policy? If so, did they follow it?

It's entirely possible that they didn't (or if they did have a policy, that it wasn't fully compliant), but I don't know this for sure.
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Michael, 20 Mar 2014 @ 9:38am

It sounds like the court system has been willfully blind to Prenda misusing the system for extortion.
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John Fenderson (profile), 20 Mar 2014 @ 9:40am

Re: Re: Re: Re: Re:
The CEOs, yes. The companies, no. The CEO is not the company.
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John Fenderson (profile), 20 Mar 2014 @ 9:42am

Re: Re: Re: Re:
You can only be negligent if there is some duty of care that you've neglected. Your scenario isn't a case of that, either.
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AzureSky (profile), 20 Mar 2014 @ 10:48am

could the venue change have been specifically to get to a place they knew jury's where more likely to side with them?

i mean they may know that by moving the NJ they could get a jury that would be either easier to manipulate or that they would be more likely to side with them for other reasons.

its like most jury situations, neither side wants people who cant be manipulated.....they actively remove people who can think/reason from jury duty in my exp.
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Anonymous Coward, 20 Mar 2014 @ 11:02am

Re: DMCA?
Arstechnia has an article on the story: http://arstechnica.com/tech-policy/2014/03/jury-mp3tunes-and-its-founder-must-pay-emi-for-copyright- infringement/

Article states "The jury did find for Robertson on a few points. For instance, when he shut off access to certain MP3 files following takedown notices from EMI, the record label argued he should actually delete those files from users' personal lockers as well. The jury found that Robertson wasn't obligated to go that far."

So good news for Megaupload with regards to not deleting the files from users personal lockers.
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John Fenderson (profile), 20 Mar 2014 @ 11:51am

Re: Re: Re:
No shame. I didn't think up the definition myself. I was just repeating what the law's definition is.
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Anonymous Coward, 20 Mar 2014 @ 11:52am

Re: Re: Be careful what you wish for.
only if the public is lining the pockets of the authorrities more then "big food".
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Mike Masnick (profile), 20 Mar 2014 @ 12:59pm

Re: DMCA?
It's been a while since I looked at this case, so I have to ask this question.

Did MP3tunes have a DMCA policy? If so, did they follow it?

Yes on both. EMI challenged first whether the DMCA covered pre-1972 recordings and had that rejected. It also questioned the effectiveness of MP3Tunes repeat infringer policy.

But this case turned on the whole "red flag" knowledge issue...
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BernardoVerda (profile), 20 Mar 2014 @ 7:46pm

Re: Re:
>> Hmmmmm. Looks like willful blindness as a business model is on the way out.

> It was never in.

The Marlboro Man begs to differ...

(among many others)
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BernardoVerda (profile), 20 Mar 2014 @ 7:52pm

Re: Re: Re: Re:
> Not really. The tobacco industry wasn't willfully blind at all. They knew full well the effects of their products and lied about it.

So, they weren't "wilfully blind", but wilfully feigning blindness? That's a fair point. But by that standard not even Nelson, the textbook example, was wilfully bind, when he held the spyglass to the wrong eye, and said that he saw no signal.
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Anonymous Coward, 21 Mar 2014 @ 11:08am

Re: Re:
The the judge gives them awful instructions like ignore you sense of justice and rule this way or that way because of what you 'must' do 'legally.'
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