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infringing EMI's copyrights. MP3tunes removed the links identified by EMI, and
terminated the accounts of repeat infringers who violated copyrights by sharing the
content of their lockers with other users, but did not remove copies of those songs
from its users' lockers.
EMI claimed secondary liability for copyright infringement against MP3tunes for
providing the means that allows end-users to violate EMI's copyrights, and argued
that MP3tunes is ineligible for protection under DMCA because it failed to
reasonably implement a repeat infringer policy by not identifying users who had
sideloaded works identified in the takedown notices, and failed to act to remove songs
from users' lockers that were sideloaded from websites identified in the notices.
The court found MP3tunes was eligible for the DMCA protections, and addressed
a significant issue emerging in the cloud regarding EMI's claims [5]. The court ruled
that MP3tunes had the duty not only to delete links to infringing materials publicly
displayed on Sideload.com, but also the duty to remove songs stored in users'
personal lockers which were downloaded from such links.
Regarding users' activity, the court distinguishes between blatant infringers, who
know they lack authorization, and users who download content for their personal
entertainment, and do not know for certain if the material they are downloading
violates the copyrights of others. Blatant infringers are those who upload content and
allow others to experience or copy the work. In this case, MP3tunes terminated the
accounts of repeat infringers who violated copyrights by sharing the content of their
lockers with other users. Fair use doctrine may protect a user who copies a song from
his/her hard drive into cloud, but fair use will not excuse a user who uses a cloud
service to share copyrighted material [2].
Even though the court determined the cloud service provider was entitled to safe
harbors in this case, some problems can arise regarding this matter when the cloud
services are private. The problem with this kind of cloud services is the difficulty for
copyright holders to detect copyright infringement, and the ineffectiveness of
takedown notices. Because of their private nature, it is almost impossible for
copyright holders to detect an infringement in private cloud services, and providers
may rarely receive takedown notices. The decision on MP3tunes does not extend to a
private cloud service unaccompanied by a service like Sideload because takedown
notices have little effect on private cloud services [2]. This kind of notices have little
effect on private cloud services because the use of these services is private.
7
Conclusions
Safe harbor provisions and fair use are essential doctrines in copyright law. The
DMCA establishes the safe harbor defense rules as a limitation of liability for ISPs
regarding copyright infringement by Internet users.
The third safe harbor is applicable to cloud computing services. To be eligible for
safe harbor provisions, cloud computing services provider must meet the statutory
requirements for the DMCA's safe harbor, and must implement an effective takedown
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