Law & Disorder / Civilization & Discontents

Jury: MP3tunes and its founder must pay EMI for copyright infringement

A damages trial is underway; Michael Robertson could be liable for many millions.

MP3tunes founder Michael Robertson in 2006.

Michael Robertson is an entrepreneur who is no stranger to drawn-out legal battles. He founded, an early music storage service that was ultimately sued out of existence by record labels. And in 2005, he founded MP3tunes, which eventually suffered the same fate. MP3tunes filed for bankruptcy in 2012 after "four and a half years of legal torment," wrote Robertson.

But the lawsuit against MP3tunes, filed by the EMI record label in 2007, marched onward even after the company's demise. The case has finally gone to a jury in a Manhattan federal court, and yesterday the jury handed down a verdict in favor of EMI. It ruled that Robertson should be liable for copyright violations for the creation of MP3tunes.

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 that he should actually delete those files from users' personal lockers as well. The jury found that Robertson wasn't obligated to go that far.

Neither side would comment to Reuters, which published a report on the verdict late yesterday. Robertson didn't immediately respond to a phone call or e-mail from Ars seeking comment on the case.

Damages are to be determined in a separate damages trial that is immediately underway and is expected to last two to three days. The scale of damages requested isn't clear from initial reports, but given statutory damages under copyright law, it's potentially devastating: 2,100 copyrights were at issue in the trial, and even non-willful infringement can be fined at a rate of $30,000 per work. Willful infringement is up to $150,000 per work.

Quick back-of-envelope math: 2,100 times 30,000 is $63 million.

MP3tunes was founded in 2005, along with a related site called; EMI sued in 2007. The site was basically a music storage locker, with Sideload being a search engine that scoured the Internet for MP3s that users could load into their lockers. Robertson contended that Sideload was often searching for and finding promotional copies of MP3s that record labels themselves had given out to music blogs and other sites. As for MP3tunes, Robertson maintained that users should be able to store their music and listen to it anywhere without needing a licensed, official service.

In 2011, the judge granted summary judgment to MP3tunes on some grounds while rejecting others. He found that many aspects of MP3tunes were covered by the DMCA's "safe harbor" provisions. But the following year, an appeals court ruled in Viacom's favor in its lawsuit against YouTube; considering that new decision, the judge reversed the part of his ruling that had been favorable to MP3tunes, according to The Hollywood Reporter. Robertson's case went to a jury without safe harbor protection.

When MP3tunes entered the field, it was virtually alone. But cloud storage of all types grew enormously between 2007 and 2014. Robertson said that as a storage service allowing users to move around and access their own data, MP3tunes really wasn't any different from storage services offered by Google, Amazon, or Dropbox. However, when Google and Amazon got into music-specific cloud storage in 2012, they paid the record labels. That barrier to entry will remain for some time. Anyone hoping to create an unlicensed music cloud service will have the example of MP3tunes to consider—and its seven long years of ultimately unsuccessful litigation.

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