By Thomas Long, J.D.
The streaming service did not qualify for the DMCA safe harbor because it lacked a "repeat infringer" policy and a designated agent for receiving infringement notifications.
Spinrilla, a streaming and downloading service for hip-hop music, and its founder (together, "Spinrilla") could not take advantage of the safe harbor protections of the Digital Millennium Copyright Act (DMCA) from copyright infringement claims brought by recording companies over "mixtapes" containing the companies’ songs that were uploaded by Spinrilla users, the federal district court in Atlanta has determined. Spinrilla was held to be directly liable as a matter of law for streaming 4,082 of the plaintiffs’ copyrighted sound recordings from its servers to its users without the plaintiffs’ authorization. Spinrilla lacked a "repeat infringer" policy, as required by the DMCA, and it also failed to designate an agent to receive notifications of infringement until several months after the lawsuit was filed. The court held that Spinrilla’s streaming of copyrighted content directly from its website and mobile app infringed the record companies’ exclusive right to publicly perform their copyrighted sound recordings (Atlantic Recording Corp. v. Spinrilla, LLC, November 30, 2020, Totenberg, A.).
Defendant Jeffery Dylan Copeland was the sole founder and proprietor of Spinrilla, LLC, which Copeland launched in 2013 as a streaming and downloading service for hip-hop music. Branding itself as "the 800-lb gorilla of hip-hop mixtapes," the service had approximately 19 million registered users and 1.5 million daily active users, 14,000 of whom had the ability to upload audio files. As of October 2017, approximately 1.4 million songs were available on Spinrilla. General users of Spinrilla’s website and apps could stream and download songs and mixtapes that were uploaded by "DJs" who had "artist accounts." DJs were approved by Spinrilla and given privileges to directly upload "mixtapes" that contain mp3 files to the service.
A group of the largest record companies in the U.S. filed suit against Spinrilla on February 3, 2017, claiming that Spinrilla had allowed and participated in copyright infringement of thousands of the plaintiff’s sound recordings. Both parties moved for summary judgment on Spinrilla’s copyright infringement liability as well as its assertion of the safe harbor defense under Section 512(c) of the DMCA.
Direct infringement. The plaintiffs asserted that Spinrilla directly infringed their exclusive rights under Section 106 of the Copyright Act to "reproduce," "distribute," and "perform" their works each time one of their sound recordings was uploaded to Spinrilla and downloaded or streamed by Spinrilla users.
In the court’s view, Spinrilla engaged in the public performance of the plaintiffs’ copyrighted recordings for purposes of the Copyright Act. Sprinrilla admitted streaming at least one copy of the 4,082 works at issue, and did not provide an argument to counter the plaintiffs’ contention that this activity constituted infringement of the plaintiffs’ public performance rights. Spinrilla argued instead that for an Internet service provider such as itself to be liable for direct infringement, there must be more than "mere ownership of a machine used by others to make illegal copies." According to Spinrilla, there must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the service provider "trespassed on the exclusive domain of the copyright owner."
The court rejected Spinrilla’s argument, stating that none of the caselaw on which Spinrilla relied involved a music streaming service or alleged infringement of the right of public performance. The court noted that the Copyright Act is a strict liability statute and explained that the Eleventh Circuit has not considered whether "volitional" conduct is a necessary element for direct copyright infringement. Even if volitional conduct is required for direct infringement, the plaintiffs cited cases holding that the affirmative act of streaming constituted direct infringement of the copyright holder’s exclusive right of performance regardless of the fact that the streaming occurred at the request of a user.
"Defendants have created an interactive internet player that streams copyrighted content directly from its website and mobile app," said the court. "In doing so, Defendants have infringed Plaintiffs’ exclusive right ‘to perform’ their copyrighted sound recordings ‘publicly by means of a digital audio transmission.’" Therefore, the court concluded that the plaintiffs were entitled to summary judgment on their claim of direct infringement of the 4,082 works in suit.
DMCA safe harbor. To qualify for safe harbor protection under DMCA Section 512(c), an online service provider must not have actual or "red flag" knowledge of infringing content or activity on its site, or must act "expeditiously" to remove the content or to disable access to it. Red flag knowledge means that the service provider is "aware of facts or circumstances from which infringing content is apparent," the court explained. The service provider does not have a duty to search or monitor for copyright infringement, and if a service provider is otherwise eligible for the safe harbor defense, the copyright owner has the burden to show that the service provider failed to respond appropriately to actual or red flag knowledge. However, the court added, "willful blindness" to acts of specific infringement can serve as a proxy for knowledge that would defeat the safe harbor defense.
In addition, to qualify for the safe harbor, a service provider must have a designated agent, registered with the Copyright Office, to receive notifications of claimed copyright infringement. "Moreover, a service provider does not ‘retroactively’ qualify for the safe harbor defense for copyright infringement that occurred prior to registering a designated agent," the court said. The safe harbor also requires a service provider to adopt and reasonably implement a policy to terminate access to its services by repeat copyright infringers.
In this case, the court held, Spinrilla did not meet the requirements for safe harbor protection under the DMCA. Starting in March 2015, the plaintiffs sent Spinrilla 59 takedown notices over a two-year period identifying more than 400 infringing copies of the plaintiffs’ sound recordings on Spinrilla’s system. They also sent targeted notices between July and November 2016, which identified nine specific user accounts that had uploaded the plaintiffs’ copyrighted sound recordings to Spinrilla on multiple occasions. After the plaintiffs filed suit on February 3, 2017, Spinrilla terminated one of the nine repeat infringer accounts. It was undisputed that the other eight accounts remained active. The plaintiffs identified infringing sound recordings that were uploaded by some of these accounts in October 2017. Although these works were not at issue in the case, they indicated that the user accounts had not been terminated.
Spinrilla acknowledged that it lacked a written policy to terminate users’ accounts for repeat copyright infringement until July 23, 2017, and did not have a mechanism for tracking repeat infringers. In addition, it was undisputed that Spinrilla first registered a DMCA agent with the Copyright Office on July 29, 2017, five months after the plaintiffs filed their complaint. Therefore, the court concluded that Spinrilla could not invoke the safe harbor defense for their acts of infringement up to July 29, 2017. The court held that it did not need to determine whether Spinrilla was entitled to protection from liability for content available on Sprinrilla after that date because the plaintiffs’ infringement claims were limited to the 4,082 works asserted in an exhibit to the complaint because the plaintiffs did not send takedown notices regarding these recordings and did not include them as works in suit.
This case is No. 1:17-cv-00431-AT.
Attorneys: Andrew H. Bart (Jenner & Block LLP) for Atlantic Recording Corp., LaFace Records LLC, and Sony Music Entertainment. Kaitlyn Anne Haase (Lilenfeld PC) for Spinrilla, LLC, and Jeffery Dylan Copeland.
Companies: Atlantic Recording Corp.; LaFace Records LLC; Sony Music Entertainment; Spinrilla, LLC
MainStory: TopStory Copyright TechnologyInternet GeorgiaNews GCNNews
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