From DLA Piper’s Media and Sports Group e-newsletter ‘Media Intelligence’

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

A New York District court has ruled that MP3tunes, a website which allows users to store online collections of music, is entitled to rely on safeharbours under the US Digital Millennium Copyright Act in respect of certain activities of its users. allows users to use cloud music ‘lockers’ to store and build online music collections.  Songs uploaded to a user’s locker can be played and downloaded through any internet-enabled device.  Lockersync, a free software program provided on the website, enables users to automatically upload to their lockers mp3 files stored on their personal hard drives.  Another feature of the website called Webload allows a user to enter the web address of a music file stored on a third-party server connected to the internet, and transfer the file to the user’s locker.  MP3tunes also owns and operates a second website,, which allows users to search for free song files on the internet.  If the user has a locker on, will enable the user to download the song from the third-party website and save it to his locker.


In 2007 MP3tunes received three takedown notices from EMI Music Group North America and EMI Entertainment World (both non-parties) requesting the removal of song titles and web addresses that were said to infringement EMI’s copyrights, as well as others that were not specifically identified. MP3tunes responded by removing links to the specific web addresses listed in the takedown notice but did not remove the infringing songs from its users’ personal lockers.


Legal action was brought by EMI and fourteen record companies and music publishers under the US Digital Millennium Copyright Act (“the Act”), which regulates the liability of online service providers in respect of copyright infringement on their services.


U.S. District Judge William Pauley found that whilst MP3tunes were guilty of not complying with the takedown notices by failing to remove the specifically identified infringing songs from users’ lockers, where the location of the infringing content could not be identified, the burden of the investigation did not fall on MP3tunes as the site did not have “specific red flag knowledge with respect to any particular link”, thus qualifying MP3tunes for the safeharbour provisions contained within the Act.


The founder of MP3tunes described the ruling as a ‘99% victory’.  EMI have expressed disappointment with the decision.  An EMI spokesman stated: “EMI believes that companies like MP3tunes, which knowingly build a business based on stolen music, should not be entitled to any DMCA safe harbour defence, and we’re evaluating our options to seek review of those portions of the decision.”

Please click here to see the full ruling.