Michael Robertson Challenges Ruling That Says He Has To Pay Over $40 Million For Copyright Infringement
from the red-flags-indeed dept
Earlier this year, we wrote about the troubling ruling against MP3Tunes.com, in which it was found to be “willfully blind” to infringement on its music locker service — raising serious questions for basically any cloud service provider. EMI, the record label suing, used an incredibly low standard for what it considered to be willful blindness, but the jury bought it. On top of that, it found MP3Tunes founder Michael Robertson not just personally liable for certain infringement, but said he’d have to pay somewhere around $41 million for it.
In response, Robertson is fighting back, asking the judge to basically overrule the jury on a number of different matters. There’s a lot in the filing that’s worth reading, but it highlights just how crazy some of the details are in this case. The biggest issue is the whole “willful blindness” issue or “red flag knowledge.” As other courts have noted, this has to be in reference to specific instances of infringement — but that wasn’t shown for many of the files in this case. Rather, the jury was only told of general infringement. This was the issue at the center of the big YouTube/Viacom case, in which YouTube won the argument that Viacom had to show red flag knowledge of specific infringement, rather than just arguing general knowledge of infringement. Yet, in this case, the issue seems to have been flipped.
There’s also the troubling aspect of how the jury found Robertson guilty of not just direct infringement (of 22 files), but also “vicarious and contributory liability” on a list of over 2000 additional works. But, as Robertson notes, for that to be the case, EMI would have to have shown Robertson receiving a direct financial benefit from that infringing activity, and, in fact, Robertson received nothing from the infringement, or the company — instead, he lost millions.
The trial record is devoid of evidence that Robertson received any such direct financial
benefit. In fact, not only did Robertson not receive any direct financial benefit from MP3tunes’
and its users’ infringing activity, he personally invested and lost over $6.8 million. Moreover,
uncontroverted trial testimony shows that Robertson has (a) never taken a salary or a bonus from
MP3tunes… and (b) never received any dividends or any distribution, even directly or
indirectly through any of the trusts, from MP3tunes…
Tellingly, Plaintiffs do not dispute these facts. Instead, they argued that Robertson could
have made money, if his plan had been a success…. But the Liability Charge
rejected such hypothetical conjecture; rather, it requires that “Robertson received a financial
benefit directly attributable to the infringing activity of MP3tunes.” …. Indeed, the very conjecture Plaintiffs assert is itself an implicit admission that
Robertson did not receive a financial benefit. … (“Had he succeeded and signed up
millions of users, he could have taken the company public, gotten investors or sold the
company”) (emphasis added)). Such speculative conjecture is too remote to support vicarious
Furthermore, it notes how the jury appears to have confused benefit for the company with benefit for Robertson directly. Furthermore, he argues that some of the arguments seem entirely based on a made up concept of tertiary liability. Basically, the jury argued that MP3Tunes has secondary liability for the actions of its users (already a questionable statement, given its compliance with the DMCA’s safe harbors), and beyond that Robertson thus has tertiary liability for MP3Tunes’ secondary liability. Anyone who believes in the nature of a limited liability corporation, and separating the liability of the company from its staff, might want to pay attention to that issue.
Under the charge, Robertson may be liable for MP3tunes’ secondary liability without any
proof of his knowledge of, benefit from, or contribution in, the users’ direct infringement; and
without any direct infringement by MP3tunes. That simply is not the law, and is contrary to the
fundamental limits of secondary liability.
On the willful blindness/red flag issue, Robertson notes the made up and artificial standard that EMI uses, that if they had recieved DMCA notices with 10 or more links to a particular website, they had red flag knowledge that all links from that website must be infringing.
Plaintiffs simply counted the number of occurrences of
domains in their takedown notices, and when the count reached 10, assigned to MP3tunes willful
blindness or red flag knowledge that all sideloads from such domain were infringing. That is
insufficient. MP3tunes could not discern any specific instances of infringement merely from
the fact that any particular domain was present more than 10 times on takedown notices. In fact,
counting the number of occurrences on takedown notices does not even rise to a showing of “a
high probability of general infringement” or “a generalized awareness of infringement,” which
are not enough to establish willful blindness or red flag knowledge.
In addition, the number “10” was plucked from thin air. Why not three? Why not 15 or
20? Where was the evidence showing the significance of 10 occurrences? Moreover, the lack of
notice of specifically infringed works means MP3tunes had to conduct an investigation to
determine which works were infringed: (i) which domains met the threshold of 10; (ii) which
works were owned by Plaintiffs; and (iii) which works were sideloaded without authorization.
He further presents proof that EMI itself miscounted. Five out of thirteen domains they listed had errors. On top of that, he points out that EMI itself authorized free MP3s on many of those domains. In other words, there were authorized works on those same sites, which EMI insists Robertson must have known were infringing.
There are other issues raised in the filing as well, which you can read below, including questions about liability on cover art images. The specific legal issues in the case concerning secondary liability and red flag knowledge are quite important, because it will absolutely be cited as precedent in other cases as well. Unfortunately, as we’ve noted for a while there’s sometimes a difference between “real law” and “file sharing law” in which courts decide if something feels like infringement and then twists itself to make it so. This case has all the indications of a court feeling like Robertson did something wrong, even if it doesn’t seem to actually fit under the law. Thus, the effort here may be quite a long shot. Unfortunately, the ramifications of that will be felt by tons of other services, especially those in the cloud computing space.