Have Great Minds Stopped Thinking Alike? The Split of Opinion within the Second Circuit on Copyright

There’s a popular old adage that says “great minds think alike.”

There’s also a much less popular adage that posits “If everybody’s thinking the same thing, then nobody’s thinking.”

The latter seems to be on display at the Second Circuit Court of Appeals.

This blog recently reported on a remarkable Second Circuit opinion regarding transformative use that appeared to “walk back” the expansive view given this doctrine by a previous panel of the same circuit in Cariou v. Prince. 1

Well, they’re at it again.

Last week saw yet another panel walk back the extreme ruling of the same circuit in Capitol Records v. Vimeo 2 with a ruling in the case of EMI Christian Music v. MP3tunes, LLC. 3 MP3tunes, like Grooveshark before it, urged patrons to “sideload” copyrighted material in a digital storage locker, where it would be made accessible to others.

Recall that in the Vimeo case, that panel took the concept of “willful blindness” to such an extreme as to render it almost meaningless, ruling:

“If service providers were compelled constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring investigations whenever some level of suspicion was surpassed, these obligations would largely undo the value of § 512(m). We see no merit in this argument.” 4

This panel, while citing liberally to the opinion in Vimeo, nevertheless pulls way back from this extreme position.

“A reasonable jury alternatively could have determined that MP3tunes consciously avoided knowing about specific repeat infringers using its services, even though the infringement was rampant and obvious. In Viacom, we held that “the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA.” (citation omitted) Thus, at trial the plaintiffs could prevail by demonstrating that MP3tunes’s failure to track users who created links to infringing content identified on takedown notices or who copied files from those links evidenced its willful blindness to the repeat infringing activity of its users.” 5

And here’s the big walk back:

“MP3tunes would simply have had to make use of information already within its possession and connect that information to known users.” 6

Contrast that language with that of the panel in Vimeo quoted above. Quite a difference.

Also, contrast this language from Vimeo:

“[that] Vimeo employees inappropriately encouraged users to post videos that infringed music cannot support a finding of the sort of generalized encouragement of infringement supposed by their legal theory.”  7

With this language from EMI that nods to the opinion in Vimeo and then reaches the opposite result:

“[T]he jury could reasonably have found that MP3tunes conceived of and was designed to facilitate infringement based in part on evidence presented at trial that MP3tunes ‘actively encourage[d] infringement… Although such evidence might not alone support a separate finding of red-flag knowledge or willful blindness as to users, see Vimeo, 826 F.3d at 99, the jury could certainly rely on it in deciding whether MP3tunes was entitled to the DMCA safe harbor, see Fung, 710 F.3d at 1040 (holding that ‘aspects of the inducing behavior that give rise to liability are relevant to the operation of some of the DMCA safe harbors and can, in some circumstances, preclude their application’).’” 8

All of which raises the question: is there an internal split within the Second Circuit on copyright issues?

Now, some of the infringing material was blatantly obvious, such as the presence of a song by the Beatles on MP3tunes servers at a time when no Beatles tracks had been licensed for digital download anywhere in the world. 9 The Court in EMI held this could be “reasonably concluded” to be red flag knowledge that required affirmative action by MP3tunes. 10

Similarly, there had been no major label distribution of MP3’s before 2007, but MP3tunes had scores of them on their servers. Despite acknowledging that there was no “continuing affirmative duty to monitor its servers for infringement,” 11 the Court in EMI nevertheless held that

“The jury could comply with that instruction and still find that MP3tunes was required to disable access to pre–2007 songs by “act[ing] expeditiously to remove, or disable access to” the pre–2007 songs “upon obtaining such knowledge or awareness.” 12

As to the concept of what is a “repeat infringer,” the panel in EMI widens the net considerably: 13

  • “Copyright infringement is a strict liability offense in the sense that a plaintiff is not required to prove unlawful intent or culpability.”
  • “[A] user does not have to share copyrighted works in order to infringe a copyright.”
  • “In the context of this case, all it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use.”
  • “[The] ‘repeat infringer’ requirement is meant to deter those ‘who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others.’” 14
  • “The legislative history of the DMCA indicates that a ‘repeat infringer’ does not need to know of the infringing nature of its online activities, or to upload rather than download content.”
  • “[N]one of our sister circuits has adopted the District Court’s definition of ‘repeat infringer’ to include only those who willfully infringe copyrights. To the contrary, the Seventh Circuit has suggested that the term covers users of file-sharing services who are ‘ignorant or more commonly disdainful of copyright.’” 15

Thus, the Court ruled that the finding of a failure to terminate “repeat infringers” was correct where “MP3tunes did not even try to connect known infringing activity of which it became aware through takedown notices to users who repeatedly created links to that infringing content in the sideload.com index or who copied files from those links.” 16

Perhaps the Court in EMI was influenced by the Defendant’s own announcement when starting MP3tunes.

“MP3.com guy back to rejuvenate MP3 business. Largest copyright infringer of all time back at it again. Lots of juicy press angles.” 17

Fairly screams “repeat infringer,” doesn’t it?


  1. Who’s On First? “Nobody” Says Court of Appeals
  2. Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act
  3. 2016 WL 6211836 Second Circuit Court of Appeal 2016
  4. Capitol Records v. Vimeo 2016 WL 3349368 Second Circuit Court of Appeals 2016 at 15
  5. EMI at 5
  6. Id. at 5-6 (emphasis added)
  7. Vimeo at 13
  8. EMI at 7
  9. Id.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Citing S. Rep. 105–190, at 52 (1998); H.R. Rep. 105–551(II), at 61 (1998) (emphasis added).
  15. EMI at 5
  16. Id.
  17. Id. at 2

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