Amazon caught in the middle of blank CD levy battle

Company is being sued for millions of dollars for selling blank CDs, cassette tapes, memory cards, and MP3 players to Austrian customers who might have used them to record copyrighted music.

Amazon has found itself in the middle of a battle over whether it should pay up for the past sales of blank CDs, cassette tapes, memory cards, and MP3 players. Unfortunately for the company, the EU's Court of Justice hasn't provided much help in determining an outcome.

The European Union's high court on Thursday issued a ruling (PDF) regarding whether Amazon or other retailers should pay a "private copying levy" on the sale of recording media to customers.

An Austrian copyright-collecting agency, Austro-Mechana, has sued Amazon for $2.4 million, claiming that the company owes artists fees for the sale of blank media between 2002 and 2004. Amazon has argued that suit, which presumes that people are using the blank media for the illegal recording of copyrighted works, is not fair.

The EU's Court of Justice on Thursday ruled that in some cases, assessing such a fee in the EU is indeed fair. The court specifically said that a fee could be assessed "where the intended use is not the making of private copies." However, the court muddied the waters by saying that EU law "does not allow for the private copying levy to be collected in cases where the intended use is clearly not the making of private copies."

So what's the difference between the two? That's apparently not for the court to decide. The high court was asked by the Austrian Supreme Court to determine whether it should even hear the case. Despite Amazon's contention that the case should not be heard and should be thrown out, the Court of Justice has effectively said that it can be heard, but determining whether a customer had intentions of using blank media for copyright infraction must be determined by Austria's court.

Given how difficult it is to determine the motivations of customers who buy blank media, Austro-Mechana might have a difficult road ahead of it. That said, the organization has already won in lower courts and Amazon has been forced to appeal. Now it's up to the Austrian Supreme Court to ultimately decide whether the online giant should pay up.

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