Pryor Cashman Wins DMCA Case on Behalf of Client EMI Music Publishing
On May 14, 2013, in one of the leading cases involving the scope of the Digital Millennium Copyright Act (“DMCA”), Pryor Cashman LLP and co-counsel Jenner & Block scored a victory in Capitol Records, Inc. et al v. MP3Tunes LLC and Michael Robertson, No. 07 Civ. 9931 (WHP). Plaintiffs moved to reconsider a portion of the Court’s earlier decision granting summary judgment dismissing certain claims under the safe harbor provisions of the DMCA. Plaintiffs, EMI Music Publishing companies represented by Pryor Cashman, and EMI Music record labels represented by Jenner, sought reargument based on the Second Circuit’s “willful blindness” and “red flags” decision in Viacom Int’l Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012), Judge Pauley agreed that Plaintiffs had shown there were sufficient facts regarding whether defendants were “willfully blind” or ignored “red flags” to preclude summary judgment and withdrew his prior dismissal of such claims.
"This decision reconfirmed that, as the Second Circuit said in Viacom v YouTube, the DMCA is not just a "notice and take down" statute, and does not permit online services to turn a blind eye to obviously infringing material on their sites," said Frank P. Scibilia, the Co-Chair of Pryor Cashman’s Digital Media Group and counsel for EMI Music Publishing. "As alleged in the complaint and as Plaintiffs believe the evidence shows, the defendant created an on-demand music streaming and download service without paying the songwriters and artists who created the music. The Court’s decision makes clear that those who deliberately look the other way when confronted with infringing activity because the infringing material is the draw to the service cannot seek refuge in the DMCA, which was enacted to protect passive and innocent service providers." Scibilia added, "This decision is a further building block in our efforts, on behalf of content owners – whether they be music owners, film companies, news organizations, or other rightsholders – to protect their intellectual property from those who intentionally build their own businesses on the backs of content without paying for it.”
The Pryor Cashman team representing EMI Music Publishing also includes Partner Mona Simonian and Associate Ross M. Bagley.
The case has received widespread press coverage. To read a sampling of the reporting, please click here.
