Content owners have been long exasperated by the notice-and-takedown procedure of the Digital Millennium Copyright Act (DMCA) (17 U.S.C. §512(c)(1)). It’s designed to give them a means of eliminating infringing content uploaded by users to Internet sites while providing eligible online service providers (OSPs) a safe harbor from infringement liability if they dutifully respond to takedown notices and bar repeat infringers. But even when infringing content is removed in response to a takedown notice, an identically infringing upload by the same infringer often will reappear—even at the same site. The experience for content owners has been likened to the arcade game Whac-A-Mole in which the hammering of one pop-up rodent is followed immediately by new pop-ups waiting to be hammered.

A recent decision by Judge Raymond J. Lohier, Jr. in the U.S. Court of Appeals for the Second Circuit (EMI Christian Music Group v. MP3tunes and Michael Robertson, Nos. 14-4369-cv(L), 14-4509-cv (XAP), decided Oct. 25, 2016) has gladdened the hearts of content owners. It not only endorses the plaintiffs’ key copyright infringement claims against Michael Robertson, founder and chief executive officer of MP3tunes, LLC, but also may broaden the ways in which online service providers can lose the DMCA’s safe harbor protection either by not implementing a repeat infringer policy with a sufficiently wide net or by demonstrating willful blindness to infringing activity involving entire categories of copyrighted works.

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