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Majors and Spinrilla set out jury selection questions as copyright dispute proceeds 

By | Published on Wednesday 1 June 2022


Mixtape sharing platform Spinrilla and the major record companies have both provided a list of questions that they’d like to ask potential jurors as their long running copyright infringement legal battle finally heads to trial.

The majors first sued Spinrilla in the US in 2018, accusing the mixtape service of infringing their copyrights by allowing their music to be included in mixes without licence.

For its part, Spinrilla argued that it had previously had good relationships with the record companies, many of which had sought inclusions in the mixes it hosted for promotional purposes.

It also stressed that it had a system in place to respond to requests by copyright owners to have unlicensed music removed, even working with a record industry approved audio ID company in order to run that system.

The latter point was part of an attempt by Spinrilla to claim protection under the good old copyright safe harbour. Such protection would mean that – while Spinrilla may have hosted user-uploaded mixes that contained unlicensed music – because it wasn’t directly involved in creating those mixes and it had a system for removing mixes at the request of copyright owners, it shouldn’t be held liable for any copyright infringement that occurred on its platform.

However, in 2020 the judge overseeing the case ruled by summary judgement that Spinrilla could not rely on safe harbour protection because – at the point the majors went legal in 2017 – it hadn’t completed all the formalities required under the US Digital Millennium Copyright Act to qualify for such protection.

That included registering as a DMCA agent with the US Copyright Office, and having and enforcing a repeat infringer policy. The latter requirement has become a key point in many of the music industry’s lawsuits against digital companies that claim safe harbour protection when their users infringe copyright.

Despite that summary judgement regarding Spinrilla’s liabilities, there remains the question of what damages the mixtape sharing platform should pay, which is where the jury trial comes in.

Given that the labels are pushing for so called statutory damages of $150,000 per infringement – and have identified 4082 specific copyrights that were infringed – this could be another case where the majors win mega-bucks damages. So both sides are understandably keen to ensure that the right kind of jury is recruited.

With that in mind, both sides have proposed questions to ask potential jurors which were included in a court document earlier this month that was published by Torrentfreak yesterday. Both sides have also raised issues with the other side’s questions.

The labels want to know how potential jurors access music, whether they’ve ever used Spinrilla, or created a mixtape, and whether they or anyone close to them has any experience of “deejaying”. Presumably it’s assumed that mixtape-making DJs will be more sympathetic to Spinrilla than the music industry.

The labels also want to ask whether potential jurors have ever been accused of copyright infringement, whether they donate to the Electronic Frontier Foundation, and whether they “believe that artists and record labels are not entitled to earn money when people listen to their music”.

Spinrilla is actually OK with many of the labels’ questions, although not those regarding artists and labels not getting paid, reckoning that that is an attempt to condition or bias the jury against the mixtape service, and that such questions “assume an untrue fact that the artists do not get paid, suggesting there are not other ways that they do get paid”.

The labels, meanwhile, object to many of the questions that Spinrilla has proposed. Many of those questions make statements about the legal proceedings and/or defences Spinrilla is likely to present, and then basically ask “how do you feel about that?”

Those sorts of questions, argue the labels, are “entirely improper” and “transparent attempts to pre-educate the jury on defendants’ theory of the case”.

It remains to be seen how many of the proposed questions the judge hearing the case allows to be asked. Meanwhile, we are still awaiting a date for when all of this will properly get to court.