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UK record label EMI has asked a federal judge in New York to bar the Electronic Frontier Foundation (EFF) from filing an amicus curiae brief in the record label’s lawsuit against MP3tunes. Amicus curiae — “friend of the court” briefs are often filed by interest groups in precedent-setting lawsuits. Anyone that is not party to the action can file an amicus brief and judges accept or reject them at their sole discretion.
EMI argues that the EFF’s amicus brief “contains unsupported speculation” and is “a pure advocacy piece,” too long, and a prejudice to EMI.
In September EMI sent takedown letters to MP3tunes without specifying what content it considered to be infringing, a requirement of the Digital Millennium Copyright Act (DMCA). MP3tunes gives users free storage for their music and Sideload.com, one of its subsidiary websites links users to downloads which can be stored on MP3tunes’ servers. MP3tunes filed a lawsuit (.pdf; 2.3MB) asking a federal judge to declare its business model legal.
The case promises to be a test of the DMCA’s “safe harbor” provision which protects internet service providers — including cloud storage services — from liability if infringing content uploaded by users is removed upon demand of the copyright holder. In a 2007 case, Viacom International, Inc. v. Youtube, Inc., the New York Southern District Court held that internet service providers are immune from copyright liability if they promptly remove infringing works at the copyright holder’s request, even if they know they are hosting infringing material.
But this case is about more than infringing material on websites. It’s also about what control content publishers have over their customers after the customer purchases the content. EMI in this case is asking the court to tell customers that EMI has absolute control over copyrighted content purchased by its customers.