Hiphop music video website loses safe harbor protection for copyright infringement. ATLANTIC v. SPINRILLA

In 1998 the United States passed the Digital Millennium Copyright Act (DMCA). The DMCA implemented a number of laws that brought United States Copyright law into sync with World Intellectual Property Organization Treaty requirements. One of the laws the DMCA implemented was the Online Copyright Infringement Liability Limitation Act (OCILLA).

OCILLA exempts online service providers (OSP) from monetary liability for copyright infringement if the online service provider meets certain conditions. An online service provider is a group which includes internet service providers and website operators. Online service providers are exempted from liability for both direct copyright infringement and for secondary liability for the infringement of their users.

To be granted exemption from liability for copyright infringement an OSP must:

(1) have a policy to address and terminate users that repeated infringe on the copyright of others, (2) not interfere with copyright holders “standard technical measures” to identify their works on the OSP’s network, (3) not have actual knowledge that there is infringing content on your servers, or know any surrounding facts that would make the infringing use apparent, (4) not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity, and (5) act expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement.

OSPs that comply with the above requirements may qualify for safe harbors from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. However, safe harbor only extends to money damages, the online service provider may still be ordered by a court to perform specific actions such as disabling access to infringing material.

ATLANTIC RECORDING CORP., v. SPINRILLA, LLC, 1:17-CV-00431 (N.D.GA 2020) is an example of an online service provider that did not comply with the DMCA requirements and lost its safe harbor protections.

Defendant is a website described as a platform for users to listen to and discover independent and emerging hip-hop artists. Defendant has grown to include approximately 19 million registered users and 1.5 million daily active users, 14,000 of whom have the ability to upload audio files.As of October 2017, there were approximately 1.4 million songs on Spinrilla.

Plaintiff represents several of the largest music publishers in the United States. Plaintiff sued Defendant on February 3, 2017, claiming that Defendant allowed and participated in the infringement of 4082 of Plaintiff’s copyrighted sound recordings. Defendants admit that those 4082 copyrighted song were uploaded to and downloaded or streamed from the website. Defendants claimed that the infringing activity was performed by users and that they were shielded from liability. Plaintiffs claimed that Defendant was directly infringed Plaintiffs’ copyright each time one of their sound recordings was uploaded to Defendant’s website and downloaded or streamed by a user. Both parties moved for summary judgment.

The district court held that the Copyright Act is a strict liability statute and volitional conduct is not a required element for direct copyright infringement. However, even if volitional conduct is required to prove direct infringement, streaming constitutes direct infringement of the copyright holder’s exclusive right of performance regardless of the fact that the streaming occurs at the request of the user. Therefore, Plaintiffs are entitled to summary judgment on their claim of direct infringement of the 4,082 works in suit.

With respect to the Defendant’s claim that it was protected by DMCA safe harbor, the district court disagreed. Defendants did not have a, agent designated to received DMCA complaints, nor a written policy to address repeat infringers. The district court concluded that Defendant was not entitled to DMCA safe harbor defense, and granted summary judgement in favor of Plaintiff, because it failed to comply with the requirements which grant safe harbor protection.

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