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Copyright Attorney: 9th Circuit Rules MMS Is Not Copyright Infringement

By Eric Misterovich

In a strange copyright infringement case, the 9th Circuit Court of Appeals has ruled that MMS, the text messaging standard, is not an illegal file sharing service and, therefore, cell phone carriers cannot be held liable for vicarious copyright infringement for the forwarding of copyrighted MMS messages. Luvdart, a company that produces greetings and stylized messages containing video, photos, and audio, alleged that Verizon, AT&T, and Sprint could be held liable for profiting from the facilitation of the copyright infringement of Luvdart’s copyrighted messages. In short, Luvdart alleged that these carriers allowed users to forward Luvdart’s copyrighted MMS messages to third parties in violation of Luvdart’s copyright license agreement.


A three judge panel of the 9th Circuit ruled that Luvdart failed to state a claim upon which relief can be granted and upheld the lower court’s decision to dismiss the case. In affirming the lower court’s dismissal of the case, the 9th Circuit held that Luvdart failed to show that the carriers had specific knowledge that copyright infringement occurred on their respective networks. Specifically, the Court stated, “Luvdarts’s conclusory allegations that the Carriers had the required knowledge of infringement are plainly insufficient.” The Court also rejected Luvdart’s argument that the carriers were responsible for “willful blindness,” namely, that they took specific actions to avoid learning about infringement on their networks. And the Court took issue with validity of Luvdart’s purported notices under the Digital Millennium Copyright Act: “The notices were 150-page-long lists of titles, apparently just a transcription of every title copyrighted by Luvdarts, which indicated that they wanted “accountability” for the unauthorized distribution of those titles for the period from May 2008 to November 2009.”


What does this mean for you? Simply put, your phone carrier will not be held liable for copyright infringement simply because it allows users to forward MMS messages.

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