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Memorandum of Law Motion for Reconsideration

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					                     UNITED STATES DISTRICT COURT
                FOR THE SOUTHERN DISTRICT OF NEW YORK

__________________________________________
                                            )
CAPITOL RECORDS, LLC, et al,                )
                                            )
                        Plaintiffs,         )   No. 07 Civ. 9931 (WHP)(FM)
                                            )
                  v.                        )
                                            )
MP3TUNES, LLC, and MICHAEL ROBERTSON, )
                                            )
                        Defendants.         )
__________________________________________)
                                            )
MP3TUNES, LLC, and MICHAEL ROBERTSON, )
                                            )
                        Counter-Claimants, )
                                            )
                  v.                        )
                                            )
CAPITOL RECORDS, LLC, et al,                )
                                            )
                        Counter-Defendants. )
__________________________________________)



                   MEMORANDUM OF LAW IN SUPPORT OF
                PLAINTIFFS’ MOTION FOR RECONSIDERATION
                                                   TABLE OF CONTENTS

                                                                                                                                     Page(s)

PRELIMINARY STATEMENT .....................................................................................................1

STANDARD OF REVIEW .............................................................................................................3

ARGUMENT ...................................................................................................................................3

I.      The Court Overlooked Controlling Law in Determining that the Defense to Federal
        Copyright Infringement Contained in the DMCA Applies to Sound Recordings
        Protected by New York Common Law ..................................................................................3

        A.      Section 301(c) of the Copyright Act Explicitly Prevents Any Attempt to Use
                 the Federal Copyright Statute to Limit State Law Protection of Pre-1972
                 Recordings ....................................................................................................................4

        B.      Section 512 Does Not Apply to Pre-1972 Recordings ..................................................6

        C.      Basic Principles of Statutory Construction Prevent the Interpretation of
                Section 512 in a Manner that Conflicts With Section 301 ...........................................7

II.     The Court Overlooked Controlling Law and Made Improper Factual
        Determinations in Ruling that MP3tunes had Implemented an Adequate Repeat
        Infringer Policy ......................................................................................................................8

        A.      There was No Foundation in the Record for the Court to Conclude That
                MP3tunes Terminated a Single User in Response to Allegations of Copyright
                Infringement .................................................................................................................9

                 1.       The Evidentiary Record Demonstrates that MP3tunes Never
                          Terminated a User in Response to a Takedown Notice or Out of
                          Concern Over Copyright Infringement .............................................................10

                 2.       MP3tunes’ “Evidence” of Terminating Users Was Insufficient to
                          Create an Undisputed Issue of Fact...................................................................13

        B.      All 688 Users Associated with Sound Recordings on Multiple Takedown
                Notices Were Repeat Infringers and None Were Terminated by MP3tunes ..............16

                 1.       A User Who Sideloads Unauthorized Sound Recordings Violates the
                          Copyright Law ..................................................................................................17

                 2.       A User Who Sideloads Unauthorized Sound Recordings Repeatedly is
                          a “Repeat Infringer” ..........................................................................................19

                 3.       Knowledge is Not an Element of Copyright Infringement ...............................20

        C.      Reconsideration Should Result in MP3tunes Being Ineligible for Safe Harbor ..........21

                                                                       i
CONCLUSION ..............................................................................................................................22




                                                                    ii
                                               TABLE OF AUTHORITIES

                                                                                                                               Page(s)
CASES

A&M Records, Inc. v. Napster, Inc.,
  239 F.3d 1004 (9th Cir. 2001) ............................................................................................18, 19

Arista Records LLC v. Lime Group LLC,
    715 F.Supp.2d 481 (S.D.N.Y. 2010)..................................................................................18, 19

Astoria Federal Sav. and Loan Ass’n v. Solimino,
   501 U.S. 104 (1991) ...................................................................................................................7

Auburn Hous. Auth. v. Martinez,
   277 F.3d 138 (2d Cir. 2002).......................................................................................................7

Barbaro v. U.S. ex rel. Federal Bureau of Prisons FCI Otisville,
   No. 05 Civ. 6998 (DLC), 2006 WL 3161647 (S.D.N.Y. Oct. 30, 2006) ...................................3

Bibeault v. Advanced Health Corp.,
   No. 97 Civ. 6026 (WHP), 2002 WL 24305 (S.D.N.Y. Jan. 28, 2002) ......................................3

BMG Music v. Gonzalez,
  430 F.3d 888 (7th Cir. 2005) ..............................................................................................18, 19

Capitol Records, Inc. v. Naxos of Am. Inc.,
   372 F.3d 471 (2d Cir. 2004).......................................................................................................5

Columbia Pictures Industries, Inc. v. Fung,
   No. 06 Civ. 5578, 2009 WL 6355911 (C.D. Cal. Dec. 21, 2009) ...................................8, 9, 21

Corbis Corp. v. Amazon.com,
   351 F.Supp.2d 1090 (W.D. Wash. 2004) ...........................................................................18, 19

DeAcosta v. Brown,
   146 F.2d 408 (2d Cir. 1945)...............................................................................................20, 21

El Greco Leather Products Co., Inc. v. Shoe World, Inc.,
    806 F.2d 392 (1986) ...........................................................................................................20, 21

Faulkner v. National Geographic Soc.,
   576 F.Supp.2d 609 (S.D.N.Y. 2008)........................................................................................20

Flava Works, Inc. v. Marques Rondale Gunter,
   No. 10 Civ. 6517, 2011 WL 3205399 (N.D. Il July 27, 2011) ..........................................19, 21


                                                                    iii
Fonotipia Ltd. v. Bradley,
   171 F. 951 (E.D.N.Y. 1909).......................................................................................................4

Goldstein v. California,
   412 U.S. 546 (1973) ..................................................................................................................5

Hayes v. New York City Dep’t of Corr.,
   84 F.3d 614 (2d Cir. 1996).......................................................................................................14

In re Aimster Copyright Litigation,
    334 F.3d 643 (7th Cir. 2003) ................................................................................................8, 21

In re Dana Corp.,
    574 F.3d 129 (2d Cir. 2009).....................................................................................................16

Intern. Gateway Exchange, LLC v. Western Union Fin. Services, Inc.,
    333 F.Supp.2d 131 (S.D.N.Y. 2004)........................................................................................15

Io Grp., Inc. v. Veoh Networks, Inc.,
    586 F.Supp.2d 1132 (N.D. Cal. 2008) .....................................................................................18

Island Software & Computer Serv., Inc. v. Microsoft Corp.,
    413 F.3d 257 (2d Cir. 2005)...............................................................................................18, 19

Kremer v. New York State Ins. Dept.,
   No. 06 Civ. 9949 (RLC), 2009 WL 2776637 (S.D.N.Y. Sept. 1, 2009)....................................3

Maxtone-Graham v. Burtchaell,
  803 F.2d 1253 (2d Cir. 1986)...................................................................................................15

Metropolitan Opera Ass’n, Inc. v. Wagner Nichols Recorder Corp.,
   101 N.Y.S.2d 483 (N.Y. Sup. Ct. N.Y. County 1950)...............................................................4

Mullins v. City of New York,
   554 F.Supp.2d 483 (S.D.N.Y. 2008)..........................................................................................3

Newport Electronics, Inc. v. Newport Corp.,
   157 F.Supp.2d 202 (D.Conn. 2001) .........................................................................................15

Newtown v. City of New York,
   No. 07 Civ. 6211 (SAS), 2010 WL 329891 (S.D.N.Y. Jan 27, 2010) .......................................3

Perfect 10 v. Cybernet Ventures,
   213 F.Supp.2d 1146 (C.D. Cal. 2002) .....................................................................................21

Radio Corp. of Am. v. Premier Albums, Inc.,
   240 N.Y.S.2d 995 (1st Dep’t 1963) ............................................................................................4

Raskin v. Wyatt Co.,
   125 F.3d 55 (2d Cir. 1997).......................................................................................................14
                                                                   iv
Reeves v. Sanderson Pluming Products, Inc.,
   530 U.S. 133 (2000) .................................................................................................................16

Shapiro, Bernstein & Co. v. H.L. Green Co.,
   316 F.2d 304 (2d Cir. 1963).............................................................................................. 20, 21

Shrader v. CSX Transp., Inc.,
   70 F.3d 255 (2d Cir. 1995).........................................................................................................3

T.Z. v. City of New York,
    634 F.Supp.2d 263 (E.D.N.Y. 2009) .........................................................................................3

Tennessee Valley Authority v. Hill,
   437 U.S. 153 (1978) ...................................................................................................................7

Twentieth Century Music Corp. v. Aiken,
   422 U.S. 151 (1975) ...........................................................................................................18, 19

UMG Recordings, Inc. v. Veoh Networks, Inc.,
  665 F.Supp.2d 1099 (C.D.Cal. 2009) ......................................................................................18

Viacom v. Youtube,
   718 F.Supp.2d 514 (S.D.N.Y. 2010)........................................................................................18

Virgin Atl. Airways, Ltd. V. National Mediation Bd.,
   956 F.2d 1245 (2d Cir. 1992).....................................................................................................3

STATUTES

17 U.S.C. 512(c) ..................................................................................................................6, 19, 21

17 U.S.C. 106 .........................................................................................................................6, 7, 19

17 U.S.C. § 301 ...................................................................................................................... passim

17 U.S.C. § 501(a) .....................................................................................................................6, 19

Pub. L. 92-140, 85 Stat. 391 (1971).................................................................................................5

Pub. L. 105-298, 112 Stat. 2827 ......................................................................................................7

OTHER AUTHORITIES

3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12B.10[B][1], at 12B-
   103 (2009) ................................................................................................................................20




                                                                       v
                                 PRELIMINARY STATEMENT

       The plaintiffs (collectively referred to herein as “EMI”) respectfully move for

reconsideration of a portion of this Court’s Memorandum and Order dated August 22, 2011 (the

“Decision”). Reconsideration is justified on two narrow issues. First, the Court overlooked

controlling authority in finding that provisions of the Copyright Act, specifically the DMCA, are

applicable to state law claims for infringement of common law copyrights in sound recordings

first recorded prior to February 15, 1972. Second, the Court overlooked evidence,

misapprehended controlling law, and resolved disputed issues of material fact in determining that

MP3tunes adequately implemented a repeat infringer policy and thus satisfied that statutory

requirement for establishing its entitlement to a DMCA safe harbor.

       In its original motion, EMI demonstrated that sound recordings created prior to February

15, 1972 were not governed by federal law. The Court overlooked controlling authority when it

asserted that the “plain language” of the DMCA compelled a finding that the DMCA applied to

state law claims for infringement of common law copyrights in these “Pre-1972 Recordings.”

The DMCA is not a stand-alone statute. Rather, it is a part of the Copyright Act which creates

an integrated statutory scheme for the protection of federally registered copyrights. The

Copyright Act expressly excludes Pre-1972 Recordings from the scope of its coverage and

leaves protection for those recordings to the states. Moreover, to ensure that the federal

government does not intrude on the robust state protection of those recordings, section 301 of the

Copyright Act expressly provides that nothing in the Copyright Act shall abridge state law

protections for sound recordings created prior to February 15, 1972. That provision is

dispositive of the issue raised herein. The Court’s decision does not address the plain language of

section 301, the legislative history, the controlling principles of statutory construction, or the




                                                  1
substantial precedent underscoring the previously unquestioned principle that the Copyright Act

does not apply to Pre-1972 Recordings.

       The Court also overlooked evidence and contravened existing authority when it

determined that MP3tunes had properly implemented a repeat infringer policy. In its decision,

this Court recognized that the Copyright Act requires that an internet service provider must

implement a repeat infringer policy in order to qualify for a DMCA safe harbor. In its original

motion, EMI demonstrated that MP3tunes never terminated any users for copyright infringement

despite ample evidence that many of its users were repeat infringers. The Court overlooked this

evidence and instead made the factual determination that MP3tunes had terminated 153 users for

copyright infringement. This conclusion was inconsistent with all of MP3tunes’ pre-motion

testimony that it never tracked nor terminated users out of concerns over copyright infringement.

Moreover, the conclusion was not based on evidence properly considered on summary judgment.

At a minimum, this conclusion conflicted with the voluminous evidence that EMI submitted on

this issue thus creating a triable issue of fact that the Court should not have resolved in favor of

the moving party on a motion for summary judgment. Without this finding, the Court could not

have found that MP3tunes qualified for safe harbor under the DMCA.

        In addition, the Court misapplied controlling law in determining which users were

infringers. Specifically, the Court created an impermissible distinction between users who

“upload” content and users who “merely consume” content by sideloading it to their lockers.

However, sideloading involves more than “consuming”; it constitutes unauthorized reproduction

of sound recordings, as it results in an unauthorized copy being made on MP3tunes’ servers.

There is no question that unauthorized copying is an act of infringement, regardless of whether

the user was the first user to originally upload the infringing material to the Internet. In addition,

the Court’s ruling that sideloaders were lesser infringers because some of them may not have

                                                  2
known they were committing an act of infringement (itself a proposition for which there was no

record evidence) is inconsistent with controlling precedent that provides that knowledge is not an

element of direct copyright infringement.

                                    STANDARD OF REVIEW

       A court should grant motions for reconsideration when needed to correct a clear error or

prevent manifest injustice. Virgin Atl. Airways, Ltd. V. National Mediation Bd., 956 F.2d 1245,

1255 (2d Cir. 1992). In the context of a motion for reconsideration, a movant can demonstrate

clear error where it identifies controlling law or factual matters put before the court in its

decision on the underlying matter that the movant believes the court overlooked and that might

reasonably be expected to alter the conclusion reached by the court. Shrader v. CSX Transp.,

Inc., 70 F.3d 255, 257 (2d Cir. 1995).

       When a movant demonstrates that the court overlooked controlling law or material facts,

motions to reconsider are routinely granted. See e.g., Newtown v. City of New York, No. 07 Civ.

6211 (SAS), 2010 WL 329891, at *1 (S.D.N.Y. Jan 27, 2010); Kremer v. New York State Ins.

Dept., No. 06 Civ. 9949 (RLC), 2009 WL 2776637, at *2 (S.D.N.Y. Sept. 1, 2009); T.Z. v. New

York, 634 F.Supp.2d 263, 269 (E.D.N.Y. 2009); Barbaro v. U.S. ex rel. Federal Bureau of

Prisons FCI Otisville, No. 05 Civ. 6998 (DLC), 2006 WL 3161647, at *2 (S.D.N.Y. Oct. 30,

2006); Mullins v. New York, 554 F.Supp.2d 483, 485 (S.D.N.Y. 2008); Bibeault v. Advanced

Health Corp., No. 97 Civ. 6026 (WHP), 2002 WL 24305, at *3 (S.D.N.Y. Jan. 28, 2002).

                                            ARGUMENT

I.     The Court Overlooked Controlling Law in Determining that the Defense to Federal
       Copyright Infringement Contained in the DMCA Applies to Sound Recordings
       Protected by New York Common Law

       A number of the sound recordings at issue in this case, including recordings of Frank

Sinatra performing “My Way,” Nat King Cole performing “Unforgettable,” and the Beatles


                                                  3
performing “Can’t Buy Me Love,” were created prior to February 15, 1972. These and all other

“Pre-1972 Recordings” are not protected by federal copyright law. Rather, they remain

protected by New York common law. The United States Supreme Court, the Second Circuit, and

the New York Court of Appeals are all in agreement that federal law has no impact on Pre-1972

Recordings.

        Moreover, Section 301(c) of the Copyright Act contains clear, explicit, and dispositive

direction that Congress may not amend and courts may not interpret the Copyright Act to limit

state law protection for pre-1972 sound recordings.

       Finally, nothing in the safe harbor provisions of Section 512 of the Copyright Act

purports to apply to Pre-1972 Recordings. Indeed, interpreting Section 512 to apply to state law

claims would result in the implicit repeal of Section 301and thus violates the “cardinal rule” of

statutory construction that implicit repeals are to be avoided and that statutory provisions must be

harmonized where at all possible. As a result, this Court’s assertion that the “plain language” of

the Copyright Act requires the application of DMCA safe harbors to Pre-1972 Recordings, see

Decision at 12 n. 1, is squarely at odds with the statutory text and controlling authority.

       A.      Section 301(c) of the Copyright Act Explicitly Prevents Any Attempt to Use
               the Federal Copyright Statute to Limit State Law Protection of Pre-1972
               Recordings

       While federal copyright protection of sound recordings is a relatively new development,

New York common law has been vigorously protecting owners from the unauthorized use of

their sound recordings for more than 100 years. Fonotipia Ltd. v. Bradley, 171 F. 951, 961

(E.D.N.Y. 1909); Metropolitan Opera Ass’n, Inc. v. Wagner Nichols Recorder Corp., 101

N.Y.S.2d 483, 497 (N.Y. Sup. Ct. N.Y. County 1950), aff’d 107 N.Y.S.2d 795 (1st Dep’t 1951);

Radio Corp. of Am. v. Premier Albums, Inc., 240 N.Y.S.2d 995, 996-97 (1st Dep’t 1963).




                                                  4
Federal protection for sound recordings was not effective until February 15, 1972, and even then

federal protections were not retroactive. See Pub. L. 92-140, 85 Stat. 391 (1971).

       As a result, it is black letter law that Pre-1972 Recordings have never been protected by

federal copyright law. Goldstein v. California, 412 U.S. 546, 552 (1973) (holding that federal

protection only applied to sound recordings created after February 15, 1972, and that Pre-1972

Recordings remained the exclusive province of state law); Capitol Records, Inc. v. Naxos of Am.

Inc., 372 F.3d 471, 477 (2d Cir. 2004) (protection of Pre-1972 Recordings is “neither protected

nor preempted by federal copyright law”); Capitol Records, Inc. v. Naxos of Am. Inc., 4.N.Y.3d

540, 559-60 (2005) (finding that the Copyright Act does not cover Pre-1972 Recordings, which

remain the exclusive province of state law).

       When Congress excluded Pre-1972 Recordings from federal copyright protection, it also

sought to ensure that robust state law protection for those recordings would remain free of

interference from the federal copyright laws. To accomplish this goal, Congress enacted Section

301(c) of the Copyright Act, which reads:

       With respect to sound recordings first fixed before February 15, 1972, any rights
       or remedies under the common law or statute of any State shall not be annulled or
       limited by this title until February 15, 2067. (Emphasis added.)

       Since first enacting Section 301(c), Congress has repeatedly reaffirmed the principle that

the states have exclusive and unabridged authority to determine the scope of protection for Pre-

1972 Recordings. Each time Congress has extended the term of federal copyright protection, it

has also extended the date in Section 301(c) before which the Copyright Act may not interfere or

limit state law protection for Pre-1972 Recordings. See 17 U.S.C.A. § 301(c) (revision history).

Indeed, in the very same month that Congress passed the safe harbor protections contained in

Section 512 of the Copyright Act, Congress extended the period of exclusive state law protection

for Pre-1972 Recordings contained in Section 301(c) from 2047 to 2067. Id.

                                                5
       There is no question that this Court’s application of Section 512 to EMI’s common law

copyright claim is a use of the federal copyright statute to limit state law protection for Pre-1972

Recordings. Thus, it is directly at odds with the express terms and purpose of Section 301.

First, Section 512 is part of Title 17—the federal copyright act. Second, the section is

undeniably a limitation on liability. Indeed, Section 512 is titled “Limitations on liability relating

to material online,” and expressly provides that “[a] service provider shall not be liable … for

infringement of copyright by reason of storage at the direction of a user” as long as the service

provider meets the necessary statutory criteria. See, 17 U.S.C. 512(c). Accordingly, applying

the limitations on liability in Section 512 to EMI’s state law claims is a direct violation of the

prohibition in Section 301(c) that “any rights or remedies under the common law…shall not be

annulled or limited” by anything in Title 17. 17 U.S.C. § 301 (emphasis added). Because the

Court overlooked the controlling language in Section 301(c), reconsideration should be granted

and summary judgment granted in favor of the EMI Labels with respect to the Pre-1972 Sound

Recordings.

       B.      Section 512 Does Not Apply to Pre-1972 Recordings

       While Section 301(c) clearly prevents the application of Section 512 to the EMI Labels’

common law copyright claims, even if Section 301(c) did not exist, there is nothing in Section

512 of the Copyright Act that authorizes the application of the safe harbor provisions to common

law claims. Section 512 provides narrow safe harbors from liability “for copyright

infringement” for qualifying service providers. 17 U.S.C. § 512(a). Chapter 5 of the Copyright

Act defines the term “infringement of copyright” to mean the violation of “any of the exclusive

rights of the copyright owner as provided by sections 106 through 122” of the Copyright Act. 17

U.S.C. § 501(a). Sections 106 through 122 of the Copyright Act, however, do not confer any

rights on the owners of Pre-72 Recordings. Accordingly, by definition the term “copyright

                                                  6
infringement,” as used in the Copyright Act only includes violations of federal rights and does

not include violations of state law. Therefore, even without reference to Section 301, it is clear

that Section 512 limitations on liability for copyright infringement must apply only to the

infringement of federal copyrights.

       C.      Basic Principles of Statutory Construction Prevent the Interpretation of
               Section 512 in a Manner that Conflicts With Section 301

       Any reading of Section 512 of the Copyright Act that would permit the application of that

section to state law claims creates an irreconcilable conflict with Section 301(c). As a result, the

Court’s interpretation of Section 512 and its decision to give that interpretation precedence over

the plain language of Section 301 would effect an implicit repeal of Section 301 and thereby

violate controlling law.

       It is a “cardinal rule” of statutory interpretation that one portion of a statute should not be

read to conflict with or implicitly repeal another statutory provision. Tennessee Valley Authority

v. Hill, 437 U.S. 153, 189 (1978). Indeed, “legislative repeals by implication will not be

recognized, insofar as two statutes are capable of coexistence, absent a clearly expressed

congressional intention to the contrary.” Astoria Federal Sav. and Loan Ass’n v. Solimino, 501

U.S. 104, 109 (1991). This cardinal rule of construction “is even stronger when the two acts

were enacted close in time.” Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 145 (2d Cir. 2002).

Congress passed Section 512 and reenacted Section 301(c) in the same month and made the two

provisions effective within one day of each other. See 17 U.S.C.A. §§ 301, 512 (revision

history); Pub. L. 105-298, 112 Stat. 2827. Moreover, nothing in Section 512 directly conflicts

with anything in Section 301(c), and the two provisions are clearly capable of coexistence. As a

result, it was clear error to read Section 512 as limiting the rights and remedies available to

owners of Pre-1972 Recordings and thus implicitly repealing the unqualified language contained

in Section 301(c).
                                                  7
II.     The Court Overlooked Controlling Law and Made Improper Factual
       Determinations in Ruling that MP3tunes had Implemented an Adequate Repeat
       Infringer Policy

       In analyzing MP3tunes’ eligibility for safe harbor under the DMCA, the Court correctly

noted that a service provider’s implementation of a repeat infringer policy is a “threshold

prerequisite for every DMCA safe harbor and is a fundamental safeguard for copyright owners.”

Decision at 8. Service providers that fail to keep records of repeat infringers and those that fail

to terminate repeat infringers are not eligible for safe harbor. Id. at 9. Thus, without a finding

that MP3tunes implemented and enforced a repeat infringer policy, this Court could not have

found that MP3tunes was immunized from liability under the DMCA’s safe harbor provisions.

Indeed, “[t]he common element of [the DMCA’s] safe harbors is that the service provider must

do what it can reasonably be asked to do to prevent use of its services by ‘repeat infringers.’” In

re Aimster Copyright Litigation, 334 F.3d 643, 655 (7th Cir. 2003); see also Columbia Pictures

Industries, Inc. v. Fung, No. 06 Civ. 5578, 2009 WL 6355911, at *18 (C.D. Cal. Dec. 21, 2009).

       The parties did not dispute—and the Court recognized—that MP3tunes had the ability to

identify repeat infringers and to terminate their accounts. Decision at 11. However, in finding

that MP3tunes adequately implemented a repeat infringer policy, the Court made several

findings that were in error. First, the Court determined that MP3tunes had terminated the

accounts of “153 repeat infringers who violated copyrights by sharing the content of their lockers

with others.” Id. at 10-11. The evidence submitted did not support this finding. Second, the

Court determined that service providers had a legal obligation to terminate users that repeatedly

uploaded infringing content but not users that “merely consume that content.” Id. at 10. The

record clearly reflects that MP3tunes users who sideloaded content were not “mere consumers”

but rather directed the making of unauthorized copies of copyrighted material. Third, the Court

erred to the extent that it concluded that users who did not “know for certain” that they were

                                                  8
committing copyright infringement were not necessarily “repeat infringers” within the meaning

of the DMCA. Id. Controlling authority holds that knowledge is not an element of copyright

infringement, and therefore it was error to deem knowledge a factor in whether a user was a

“repeat infringer.”

        Because these findings were in error and were critical to the Court’s determination that

MP3tunes is entitled to the safe harbor provisions of the DMCA, summary judgment holding

MP3tunes ineligible for the DMCA safe harbor should be granted or—at the very least—the

Court should set the issue for trial.

        A.      There was No Foundation in the Record for the Court to Conclude That
                MP3tunes Terminated a Single User in Response to Allegations of Copyright
                Infringement

        During discovery, every MP3tunes employee questioned on the topic of account

termination—from the individual responsible for responding to Takedown Notices to Michael

Robertson himself—testified that MP3tunes never took any action to identify infringers from

copyright owner takedown notices or to terminate user accounts as a result of copyright

infringement. Moreover, throughout discovery, MP3tunes steadfastly maintained that it had

absolutely no records showing the reason why any user had been terminated.

        Despite this undisputed evidentiary record, in its brief in support of its motion for

summary judgment, MP3tunes, for the first time, made the unsupported and self-serving claim

that it had terminated 153 users for suspected infringement. See Brief of MP3tunes in Support of

Summary Judgment (hereinafter “MP3tunes Op. Brief”), Docket Entry # 196, at 15. However,

the only evidence MP3tunes submitted to support this argument consisted of Robertson’s

unsupported declaration, which does not even allege that all (or any) of these users were

terminated for suspected copyright infringement. Moreover, the claim that MP3tunes terminated

153 users for suspected infringement was inconsistent with all other evidence in the case,

                                                  9
including MP3tunes’ own representations and the testimony of MP3tunes’ employees, including

Robertson. On this record, the Court should have disregarded MP3tunes’ assertion. However,

even if the Court were to consider this evidence, that evidence could do no more than create a

disputed issue of fact requiring a trial.

                1.      The Evidentiary Record Demonstrates that MP3tunes Never
                        Terminated a User in Response to a Takedown Notice or Out of
                        Concern Over Copyright Infringement

        The evidence submitted by EMI in support of its motion for summary judgment

conclusively demonstrated that MP3tunes never terminated a single user in response to a DMCA

Takedown Notice or as a result of concerns over copyright infringement.

        Julian Krause, the MP3tunes employee responsible for responding to Takedown Notices

and dealing with allegations of infringement, testified that he never investigated or terminated

users for suspected infringement. Ex. 102 (Krause), Docket Entry # 210, at 38:2-5, 45:11-16

(“Q: In response to a takedown notice, did anyone ever instruct you to identify the user

associated with—who had originally sideloaded that file? A. No. … Q: [N]o one instructed you

to keep track of the users that were sideloading files on the takedown notices? A. No. Q. And

you didn’t do that yourself? A. No.”).

        Additionally, other MP3tunes employees testified that they were never instructed to and

did not track or terminate users suspected of copyright infringement. For example, Derek Ford,

an MP3tunes employee with oversight over its databases, testified that he was never instructed

to—and never did—take any action with respect to copyright infringement. Ex. 101 (Ford),

Docket Entry # 210 at 99:23-100:19. Similarly, Sharmaine Lindahl, the MP3tunes employee

responsible for handling complaints of infringement from users, also testified that she never took

any action in response to claims of infringement. Ex. 103 (Lindahl), Docket Entry # 210 at

125:5-23. Doug Reese, MP3tunes’ Chief Technology Officer, also testified that he could not

                                                10
recall a single instance of a user’s termination due to repeat copyright infringement. Ex. 5

(Reese), Docket Entry #190 at 228:20-229:1.

           Even Michael Robertson, whose potential personal liability in this action gave him a

substantial motive to contradict his employees, did not testify at his deposition that MP3tunes

had terminated users over suspected copyright infringement. Rather, Robertson—acting in his

personal capacity and as MP3tunes’ 30(b)(6) corporate representative with respect to DMCA

takedown issues—recalled only two situations for which MP3tunes terminated a user account:

when a user disseminated a hate message and when a user violated MP3tunes terms of use by

sharing passwords. Ex. 4 (Robertson) at 195:2-11, Docket Entry # 210; id. at 193:12 – 194:25.

Terminating users for sharing passwords does not, in and of itself, suggest a concern about

copyright infringement.1 Tellingly, Robertson took great care to distinguish between terminating

users for violating MP3tunes’ terms of use, which he testified did occur, and terminating users

for copyright infringement. Id. at 193:8-15. Indeed, Robertson was repeatedly asked, as

MP3tunes’ 30(b)(6) corporate representative, to identify any instance in which a user was

terminated for reasons of copyright infringement, and yet he failed to identify any. Id. at 193:8 –

195:11. Thus, the evidence during discovery supported the conclusion that it was MP3tunes’

business interests—not concerns over copyright infringement—that MP3tunes addressed in its

terms of use. See Defendant’s Response to Plaintiffs’ Statement of Undisputed Facts, Docket

Entry # 220 (hereinafter “Def. Count SUF”) at ¶ 47 (MP3tunes’ statement that users were




1
    The act of sharing a password is not, by itself, an illegal copying or distribution of copyrighted material
    and does not suggest that infringement has or will take place. There are a number of scenarios in which
    sharing passwords does not implicate infringement. For example, a high school student that uses
    MP3tunes’ services to share a recording of his or her piano recital with family members may deprive
    MP3tunes of revenue—and violate its terms of use—by using their accounts in this manner, but it is not
    copyright infringement.

                                                       11
investigated for “gaming the system” and noting that gaming is when users find ways not to pay

for lockers).

           It is also important to note that during and after Robertson’s deposition, EMI pointedly

sought all documents indicating when, and under what circumstances, MP3tunes terminated

users’ accounts. See Exs. 114, 115, Docket Entry # 210. In response, Robertson and his lawyers

repeatedly represented that MP3tunes had absolutely no records related to the reason why any

account had been terminated. Specifically, Robertson, who testified as the corporate

representative for MP3tunes, stated that he was unaware of any records kept which would

identify accounts that were terminated as a result of copyright infringement. Ex. 99 (Robertson),

Docket Entry # 210, at 284:13-23. In numerous subsequent conversations, MP3tunes’ counsel

stated that no records existed. In the end, MP3tunes represented, in writing, that while it could

identify accounts that had been closed, including because a user requested it, it could not identify

the reason an account was closed. Ex. 114, Docket Entry # 210 (“there is no way to tell why any

given [user account] was set to ‘disabled’ status”).

           Although MP3tunes did not attempt to identify infringers from takedown notices, it

always had the data and means to readily do so – and, in fact, using MP3tunes’ data, plaintiffs

were easily able to identify those repeat infringers. EMI presented undisputed evidence that 688

users illegally copied works on at least 2 Takedown Notices and 139 users infringed recordings

on at least 3 Takedown Notices. Decl. of Ellis Horowitz dated October 29, 2010 (hereinafter

“Horowitz Decl.”) at ¶¶ 71-72 & Ex. S. The parties do not dispute that MP3tunes did not

terminate a single one of these 688 users in response to a Takedown Notice.2 Supplemental

Declaration of Ellis Horowitz dated November 23, 2010 (hereinafter “Supp. Horowitz”) at ¶ 41.



2
    MP3tunes’ list of 153 terminated users is an entirely different set of users from the 688 identified as
    repeat infringers on Takedown Notices. Supp. Horowitz ¶ 41.
                                                        12
       Given the evidence that MP3tunes never tracked or terminated a user because of

copyright infringement, summary judgment should have been granted in favor of EMI.

               2.      MP3tunes’ “Evidence” of Terminating Users Was Insufficient to
                       Create an Undisputed Issue of Fact

       Recognizing that it had no evidence in the record to respond to the overwhelming

evidence that it never tracked or terminated a single user as a repeat infringer, in its motion

papers, MP3tunes submitted a self-serving and unsupported declaration from Robertson stating

that MP3tunes had terminated 153 users. See MP3tunes Op. Brief, Docket Entry # 196, at 15.

This Court not only considered this allegation but improperly accepted this highly disputed

assertion as fact on a motion for summary judgment.

       First, Robertson’s declaration did not actually state that the 153 users listed were

terminated for suspected copyright infringement. Second, the declaration was in direct conflict

with the prior sworn testimony of Robertson and MP3tunes and was therefore incapable of

creating a disputed issue of fact on summary judgment. Third, interpreting Robertson’s

declaration to mean that MP3tunes terminated 153 users out of concerns over suspected

infringement puts it in direct conflict with EMI’s submitted testimony and evidence. Therefore,

even if it was admitted for this purpose, it could only create a triable issue of fact.

       Importantly, the Declaration of Michael Robertson, Docket Entry # 184, did not state—as

MP3tunes argued and as this Court factually concluded—that MP3tunes terminated the 153 users

identified therein because of suspected copyright infringement. Rather, Robertson’s declaration

was intentionally vague as to the reason for termination of each of those users. The relevant

section of Robertson’s declaration states that users could be warned for “improper use of

MP3tunes’ services.” He then goes on to say that such improper uses included—but presumably

were not limited to— “using MP3tunes’ services for the purposes of infringing activity.”

Robertson Decl., Docket Entry # 184 at ¶ 11. Finally, Robertson states that the 153 terminated
                                                  13
accounts “were terminated for such reasons.” Id. (emphasis supplied). In that context, “such

reasons” plainly means all of the reasons for which MP3tunes could warn its users. See also

Def. Count. SUF, Docket Entry # 220 at ¶¶ 47, 92. Therefore, despite fully understanding the

importance of the issue, Robertson’s declaration never asserts that MP3tunes terminated any of

the 153 users listed in his declaration for suspected copyright infringement as opposed to simply

violating MP3tunes’ terms of use.3

          The vagueness in Robertson’s declaration was deliberate. Given MP3tunes’ repeated

representations that “there is no way to tell” why MP3tunes terminated a user account and

Robertson’s own denial of any knowledge of such records, MP3tunes and its counsel were well

aware that they had to draft Robertson’s declaration in a way that created the impression that

MP3tunes took some action with regard to infringement yet still avoided direct conflict with the

evidentiary record. However, such a balancing act was wholly impossible.

          Even if the Court were to read Robertson’s self-serving and unsupported declaration—

submitted after the close of discovery and during summary judgment briefing—as alleging that

all 153 users were terminated for copyright infringement, such an interpretation is in conflict

with his own testimony and the statements of MP3tunes. As a result, the Court should not have

considered the declaration. The law is clear that a witness who disclaimed knowledge or

recollection of facts at a deposition cannot create an issue of fact on summary judgment by

submitting a declaration purporting to testify to those facts. Raskin v. Wyatt Co., 125 F.3d 55, 63

(2d Cir. 1997); Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996). When

the witness who previously disclaimed knowledge was a party’s corporate representative, this

clear rule applies with even greater force. Newport Electronics, Inc. v. Newport Corp., 157

3
    In addition, Robertson provided no information related to the time period during which this alleged
    termination took place, leaving open the possibility that most—if not all of it—occurred long after the
    relevant time period in this action. It was MP3tunes’ burden to put in admissible evidence on this point
    and they failed to do so.
                                                      14
F.Supp.2d 202, 220 (D.Conn. 2001) (a 30(b)(6) witness is “not at liberty…[to] submit[]

information in his affidavit which contradicts statements in his deposition regarding his lack of

knowledge on various topics”); Intern. Gateway Exchange, LLC v. Western Union Fin. Services,

Inc., 333 F.Supp.2d 131, 144-45 (S.D.N.Y. 2004).4

          Finally, even assuming that Robertson’s declaration could properly be considered, it

could do no more than create a hotly disputed issue of material fact. A jury certainly could have

(and, plaintiffs submit, likely would have) found that that MP3tunes did not terminate users for

copyright infringement. There was no basis on the record presented for this Court to resolve

disputed issues of fact in favor of MP3tunes. The declaration concededly contradicted: (i)

Robertson’s and Reese’s claim to have no knowledge of user terminations due to copyright

infringement, (ii) MP3tunes’ claim that it had no record of the reason for user terminations, (iii)

the testimony of Julian Krause (the employee responsible for DMCA takedowns) who said he

was never instructed to—and never did—keep track of allegations of user infringement, and (iv)

the testimony of MP3tunes’ employees, including Derek Ford and Sharmaine Lindahl, who also

stated that they were never instructed to take action with respect to copyright infringement.

Furthermore, given the carefully crafted phrasing of Robertson’s declaration, there is simply no

clear evidence at all that MP3tunes terminated any of the 153 users on MP3tunes’ list because of

copyright infringement as opposed to over their circumvention of MP3tunes’ terms of use—let

alone an allegation that any such termination occurred during the relevant time period.

          A court cannot, on summary judgment, resolve ambiguities or discrepancies in favor of

the moving party. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir. 1986) quoting


4
    The spreadsheet of allegedly terminated users that was submitted with Robertson’s declaration was
    never produced to plaintiffs during discovery, despite repeated requests, and on its face did not even
    suggest a reason or a date for the terminations, much less that the users were terminated for copyright
    infringement during the relevant period. It was simply a list of a 153 user names. Plaintiffs never had
    an opportunity to take discovery or cross-examine any MP3tunes witness regarding the list.
                                                      15
George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 555

(2d Cir. 1977) (“the court cannot try issues of fact…it must resolve all ambiguities and draw all

reasonable inferences in favor the party against whom summary judgment is sought”). As a

result, the question of whether MP3tunes terminated users in response to concerns over copyright

infringement was, at a minimum, an issue for trial and, more appropriately, should have been

resolved in EMI’s favor on summary judgment.

       Because the question of whether MP3tunes terminated users in response to Takedown

Notices or over concerns of copyright infringement was a hotly disputed issue, the Court’s

determination that MP3tunes’ terminated “153 repeat infringers who violated copyrights by

sharing the content of their lockers with others” was clear error. Id. at 10-11. Reeves v.

Sanderson Pluming Products, Inc., 530 U.S. 133, 150 (2000) (“Credibility determinations, the

weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions,

not those of a judge.”) (citation omitted); In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009)

quoting Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 (1962)

(holding that directed verdicts and summary judgment are governed by the same standard and the

court “must view the evidence in the light most favorable to the [non-moving party] and give

[the non-moving party] the benefit of all inferences which the evidence fairly supports, even

though contrary inferences might reasonable be drawn.”) (emphasis supplied).

       B.      All 688 Users Associated with Sound Recordings on Multiple Takedown
               Notices Were Repeat Infringers and None Were Terminated by MP3tunes

       In addition to making the improper factual determination that MP3tunes had terminated

153 users for copyright infringement, the Court made another clear error in its decision to grant

safe harbor to MP3tunes when it determined that the MP3tunes users who illegally copied works

on multiple Takedown Notices were not necessarily “infringers” within the meaning of the

Copyright Act. In making this ruling, the Court found that MP3tunes was obligated to terminate
                                                 16
users who repeatedly “upload copyrighted material” but not those who “merely consume that

content.” Decision at 10. This statement reflects a misunderstanding about the nature of

sideloading. Users who sideload sound recordings do not consume content. Indeed, no

“consumption” at all occurs when a user sideloads a sound recording. A sideload does not result

in the user receiving a performance of the recording or listening to the recording. To the

contrary, identically to uploading, sideloading results in an unauthorized reproduction onto

MP3tunes’ servers, which is clearly an act of copyright infringement. Accordingly, sideloading

users are clearly “infringers” under the Copyright Act.

       Furthermore, the Court attached significance to the finding that “users who sideload

content to their lockers for personal use, do not know for certain whether the material they are

downloading violates the copyrights of others.” Id. Controlling precedent, however, holds that

knowledge of infringement, let alone certain knowledge of infringement, is irrelevant to liability.

As a result, the Court’s ruling that MP3tunes was not obligated to terminate users repeatedly

associated with infringing content on Takedown Notices was clear error.

               1.     A User Who Sideloads Unauthorized Sound Recordings Violates the
                      Copyright Law

       There can be no dispute that when a user “sideloads” a sound recording, that user causes

the copying and permanent storage of the corresponding file. Decision at 3 (“If the user has a

locker on MP3tunes.com, Sideload.com displays a link that if clicked, will “sideload” (i.e.,

download) the song from the third-party website and save it to his locker.”); see also Horowitz

Decl. ¶ 24; Def. Count. SUF, Docket Entry # 220 at ¶ 47 (noting that it is undisputed that

“[w]hen the user clicked the [sideload] icon, the MP3tunes server would download (transfer) a

copy of the music file from the internet server on which it was stored to the MP3tunes server and

the user would be given access to that song through his MP3tunes locker account”). As a result,

if the copyright owner has not authorized the user to direct the making and storage of a copy of
                                                17
the sound recording, then the user is committing direct copyright infringement. See Island

Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 260 (2d Cir. 2005); A&M

Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (finding that both acts of

unauthorized downloading and uploading constitute infringement); BMG Music v. Gonzalez, 430

F.3d 888, 892 (7th Cir. 2005) (finding that individual who downloaded music was liable for

infringement and was not an “innocent” infringer within the meaning of the Copyright Act); see

also Decision at 21-22.

       In creating a distinction for purposes of the DMCA between users who “upload” and

users who “consume” music, the Court misapplied four cases: Viacom v. Youtube, 718 F.Supp.2d

514 (S.D.N.Y. 2010); Io Grp., Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D. Cal.

2008); UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F.Supp.2d 1099 (C.D.Cal. 2009) and

Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090 (W.D. Wash. 2004). In each of these cases,

the courts addressed a set of users who simply watched a performance (or viewed a display) of

an infringing work. However, there is a critical distinction between users who copy a sound

recording – whether through uploading or downloading it – and users who merely listen to a

sound recording. In the context of an unauthorized public performance, the infringing act is the

unauthorized broadcast of a copyrighted work. See 17 U.S. § 101 (indicating that copyright

owners have the exclusive right to authorize reproduction, distribution, public performance, and

public display of copyrighted works). As the Supreme Court has held: “Broadcasters perform.

Viewers do not perform.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 161 (1975).

Accordingly, the consumer who merely watches or listens is not committing an infringing act.

By contrast, users who direct the unauthorized copying of a sound recording clearly commit

copyright infringement. 17 U.S.C. § 501(a); Arista Records LLC v. Lime Group LLC, 715




                                                18
F.Supp.2d 481, 507-08 (S.D.N.Y. 2010); Island Software & Computer Serv., Inc., 413 F.3d at

260; A&M Records, Inc., 239 F.3d at 1014; BMG Music, 430 F.3d at 892.

       The application of these principles to this case reveals the Court’s error. A YouTube user

who simply watches a video—but who does not upload it or download it—has not committed an

act of infringement. 17 U.S.C. § 501(a); Twentieth Century Music Corp., 422 U.S. at 161. On

the other hand, an MP3tunes user who sideloads (whether by uploading or downloading) an

unauthorized music file has caused the copying and transfer of a “music file from the internet

server on which it was stored to the MP3tunes server” thereby committing an act of infringement

by copying a file without authorization. Def. Count. SUF, Docket Entry # 220 at ¶ 47; 17 U.S.C.

§ 501(a); Arista Records LLC, 715 F.Supp.2d at 507-08; Island Software & Computer Serv., Inc.,

413 F.3d at 260; A&M Records, Inc., 239 F.3d at 1014; BMG Music, 430 F.3d at 892. Thus,

reliance on Viacom, Io Group, UMG Recordings, and Corbis—cases involving performance and

not simply copying—to overcome the plain language of Section 512(i) and the Second Circuit’s

holding in Island Software & Computer Serv., Inc. was clear error.

               2.      A User Who Sideloads Unauthorized Sound Recordings Repeatedly is
                       a “Repeat Infringer”

       Every user who directed the unauthorized sideloading of a recording committed an act of

infringement. Those who did so more than once were, by definition, repeat infringers.

        Pursuant to Section 512, a service provider is only eligible for safe harbor if it terminates

users who are “repeat infringers.” 17 U.S.C. § 512(i). There is no ambiguity as to the term

“repeat infringer.” It means one who has committed multiple infringements pursuant to Section

501. The term clearly includes users identified in takedown notices who repeatedly direct the

copying and storage of infringing material. See 17 U.S.C. §§ 106, 501(a), 512(c)(1); see also

Flava Works, Inc. v. Marques Rondale Gunter, No. 10 Civ. 6517, 2011 WL 3205399 at *10

(N.D. Il July 27, 2011) (“it is an obvious conclusion that ‘infringer’ refers at the very least to
                                                  19
someone who infringes copyright”) (emphasis in original); see also 3 Melville B. Nimmer &

David Nimmer, Nimmer on Copyright § 12B.10[B][1], at 12B-103 (2009) (“[I]n the context of

the placement of Section 512 into the Copyright Act, an “infringer” most naturally refers to

someone who infringes another’s copyright.”).

          Accordingly, any MP3tunes’ user who sideloads (i.e. makes a copy) of a sound recording

that the copyright owner did not authorize has committed infringement. If that user has done so

more than once, the user is a repeat infringer as a matter of law.

                  3.      Knowledge is Not an Element of Copyright Infringement

          The Court also improperly attached significance to the idea that “users who sideload

content to their lockers for personal use, do not know for certain whether the material they are

downloading violates the copyrights of others.” Decision at 10. However, no court has ever held

that a user must know for certain that she is committing infringement in order to be an infringer

under the Copyright Act.5 That is because such a finding would contravene well-established law

that knowledge is not an element of copyright infringement.

          The Second Circuit has long held that copyright infringement is a strict liability offense

and that even completely innocent copying is a violation of the Copyright Act. DeAcosta v.

Brown, 146 F.2d 408, 411-12 (2d Cir. 1945); Shapiro, Bernstein & Co. v. H.L. Green Co., 316

F.2d 304, 308 (2d Cir. 1963) (“the imposition of liability…even in the absence of an intention to

infringe or knowledge of infringement, is not unusual.”); El Greco Leather Products Co., Inc. v.

Shoe World, Inc., 806 F.2d 392, 396 (1986) (“claimed lack of knowledge of…infringement, even

if true, provides no defense.”); Faulkner v. National Geographic Soc., 576 F.Supp.2d 609, 613

(S.D.N.Y. 2008) (“Even an innocent copier—for example, one who copies in the belief that the


5
    Notably, the record was devoid of any evidence as to users’ knowledge regarding the infringing nature
    of their actions. MP3tunes bore the burden of proving its DMCA affirmative defense, making the
    absence of evidence dispositive against MP3tunes.
                                                     20
infringed work is in the public domain or without realizing that he or she is copying—is

liable…”).

       No case has ever held that a user must have knowledge of infringement in order to be

considered an infringer of any kind, and such a conclusion is directly contrary to clear and well-

established law. DeAcosta, 146 F.2d at411-12; Shapiro, Bernstein & Co., 316 F.2d at 308; El

Greco Leather Products Co., Inc., 806 F.2d at 396.

       C.      Reconsideration Should Result in MP3tunes Being Ineligible for Safe Harbor

       As set forth above, the implementation and enforcement of a repeat infringer policy is a

prerequisite to enjoying safe harbor under the DMCA. See 17 U.S.C. § 512(i)(1)(A); In re

Aimster Copyright Litigation, 334 F.3d at 655; Columbia Pictures Industries, Inc., 2009 WL

6355911 at *18. That is because enforcement of the repeat infringer provision of the DMCA is

essential to “maintain the ‘strong incentives’ for service providers to prevent their services from

becoming safe havens or conduits for known repeat copyright infringers.” Perfect 10 v.

Cybernet Ventures, 213 F.Supp.2d 1146, 1178 (C.D. Cal. 2002). Accordingly, service providers

have a duty to track and terminate users who copy material listed on takedown notices, even

when that material is copied via links to content that is hosted on third party websites which the

infringer never views. See Flava Works, Inc., 2011 WL 3205399, at *10.

       If upon reconsideration the Court concludes—respectfully, as it must—that MP3tunes did

not track and terminate 153 users for copyright infringement, the Court must also conclude that

MP3tunes is ineligible for DMCA safe harbor because it failed to take any action to identify or

terminate users suspected of infringing copyrights. Similarly, if the Court determines—as it

must, since the evidence is undisputed—that each of the 688 users who were identified on

multiple takedown notices was responsible for repeatedly infringing material, then MP3tunes’

undisputed failure to terminate or even investigate a single one of these users in response to a

                                                21

				
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