MP3Tunes Ruling Protects DMCA Safe Harbors

from the about-time dept

It's been many, many years since EMI started its ridiculous lawsuit against Michael Robertson and MP3Tunes, concerning a variety of factors with MP3Tunes and the concept of online music lockers. Someone told me that a final ruling was to be expected last November, but it only just came down and it's mostly good news. You can read the full filing here (pdf) or see it embedded below. The details of the case are a bit involved, but MP3Tunes is basically a music locker, similar to Google or Amazon's music locker/streaming player. Where it got a little complicated was that MP3Tunes also offered "Sideload.com" which allowed you to move MP3s found on the web into your music locker, so long as you could point it to a URL.

EMI argued that the company was not protected by DMCA safe harbors, claiming that it "purposely blinded itself to its users' infringement and failed to take any action against hundreds of users who sideloaded copies of songs identified" by EMI as infringing. But the court rejected that. It noted that the company "tracks the source and web address of every sideloaded song in its users' lockers and can terminate the account of a repeat infringer." Furthermore, the company did, in fact, terminate 153 accounts. Thus, the court says that MP3Tunes clearly qualifies for DMCA safe harbors. This is a good ruling and another useful DMCA win.

The court also, importantly, notes that many people sideloading content have no idea if it's authorized or not, and that it would be improper to treat them all as "blatant" infringers, especially since it's just for personal use:

The record reveals that MP3tunes's users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they are downloading violates the copyrights of others.

Separately, there's an important win hidden in a footnote, in that the court ruled that pre-1972 recordings qualify for DMCA safe harbors. As you may recall, we've spoken a few times about how pre-1972 recording are generally covered by state law, rather than federal copyright law (which is why many may not hit the public domain for much longer). EMI tried to argue that pre-1972 rulings don't qualify at all for DMCA safe harbors, but the court rejected that outright, noting the "plain meaning of the statutory language."

Where EMI did score a victory is in asserting that when it sent DMCA takedown notices over links from Sideload.com, MP3Tunes should also then have to reach into users' storage lockers and delete the associated songs. I'm not sure how this fits with the statute, but the court argues that because MP3Tunes has this information (when you sideload a song to your locker, it records where it came from), it should, in fact delete them from users' lockers. Even here, EMI's legal claim tried to stretch too far. It argued beyond just the specific notices, MP3Tunes should delete "all EMI content." The court disabused the label of that notion:

EMI's argument misconstrues the DMCA and applicable case law. Even assuming the representative lists properly identified EMI's copyrighted works, EMI had to provide sufficient information--namely, additional web addresses--for MP3tunes to locate other infringing material.... EMI's notifications provided only enough information for MP3tunes to remove the noticed websites from Sideload.com and to find and remove copies of songs sideloaded from those websites. They did not identify the location of additional infringing material, let alone all of EMI's copyrighted works. Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers.

Another important rejection for EMI. It tried to use the infamous "red flag" knowledge aspect of the DMCA against MP3Tunes, saying that execs for the site itself uploaded works from "obviously infringing sites." The court notes that EMI's definition of "obviously infringing sites" is quite different than what he law suggests:

For instance, the websites rapidshare.com, fileden.com, and filefactory.com, as well as other sites used by MP3tunes executives to sideload songs do not use the words "pirate" or "bootleg" or other slang to indicate their illegal purpose and they are not otherwise clearly infringing. They are simply popular file sharing sites.

That's interesting given how frequently industry types love to insist that such sites "obviously infringe." Turns out a federal court disagrees. Thus, the court rejected red flag knowledge, noting that while some "investigation" may have turned up that such things were infringing, "if investigation is required to determine whether material is infringing, then those facts are not 'red flags.'" That's going to put on ice an awful lot of cases where the entertainment industry claims "red flag" DMCA violations.

The court also rejects the terms "free," "mp3" or "file sharing" are indicative of infringement, noting that "those terms are ubiquitous among legitimate sites offering legitimate services." In fact, as Robertson demonstrated via a crowdsourcing effort, EMI itself "regularly distributes works on the internet for free" (something it denied earlier). However, this undermines EMI's case:

Because of these activities, EMI's executives concede that internet users, including MP3tunes' users and executives, have no way of knowing for sure whether free songs on the internet are unauthorized.

That line alone could be important, given how often the industry insists that people "just know" what's infringing. The court recognizes, correctly, that it's not so easy.

Furthermore, and contrary to the claims of some who do not understand the law, the court notes that just because you receive DMCA notices, it does not establish that you have specific "red flag" knowledge of specific infringements.

Next up, we have another really important point that has been an issue in multiple cases. The question of financial benefit. Many people -- including the Department of Justice in the Rojadirecta case -- like to claim that because infringing activity on a website draws more traffic, they have proven that the site "profits from infringement." As we've explained over and over again, this is not accurate. The rule is that they have to profit directly from the infringement, not indirectly from traffic from the infringement. Once again, the court agrees with us, and not the copyright maximalists:

However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users. Moreover, MP3tunes did not promote infringement. Rather, it removed infringing links... and terminated the accounts of users who blatantly shared copyright files with others.

That line may be death for some of the lawsuits against cyberlockers out there, which all seem to assume that traffic = profiting from infringement. While this ruling may not be applicable in other jurisdictions yet, you can bet lawyers will be pointing to it, and hopefully other judges will understand this key point.

EMI then scores again in the contributory infringement claim, based on the same reasoning above, in that MP3tunes refused to remove files from lockers if they were sideloaded from sources later deemed infringing by EMI. Separately, since EMI sued Michael Robertson personally (rather than just the company), the court notes that he's liable for direct infringement of infringing songs that he sideloaded.

There are a few other side issues as well, but generally speaking, this is a big victory for MP3tunes and the safe harbors of the DMCA. It is likely that there will be appeals (perhaps on both sides), so this is far from over in an already excessively long legal dispute. But this ruling is mostly good news.

Filed Under: copyright, dmca, michael robertson, safe harbors
Companies: emi, mp3tunes

Michael Robertson Tempts Copyright Fate Yet Again With DAR.fm

from the power-of-the-possible dept

I used to joke that every company founded by Michael Robertson had a very simple "marketing plan": get sued by someone big. So many of his startups ended up in lawsuits with big names, which helped generate even more attention for them. But, of course, part of the reason for that is that he continually stretches the technology to do what it obviously can and should be able to do, well before the law (and legacy companies) adapt to handle such things. It's why many people have been pointing out that for all the hype around Apple's new "Music Match" service, it sounds remarkably like what Robertson did a decade ago with MP3.com.

Speaking of Robertson and lawsuits, Robertson's MP3tunes.com is still engaged in its big legal fight with EMI, which may help determine the legality of online music locker services, but Robertson clearly isn't waiting around for that. Built on top of MP3tunes.com, he's also launched DAR.fm, which is effectively an online DVR for all internet audio/radio. You can just set up what you want to record, and the site records it and stores it in an MP3tunes locker. At first I didn't think there was all that much interesting here -- the world already has podcasts, and did it really need a way to record online radio separately? However, things get a bit more interesting when you dig into the details, and you realize there's an interesting copyright situation... and a potential lawsuit waiting to happen.

As David Pogue pointed out in his review of DAR.fm, beyond just recording the shows, it has an interesting feature:

Actually, maybe this part is even better: Many radio stations transmit the names of the songs and bands they’re playing. DAR.fm captures that information and detects song breaks. In other words, if you record a day or so of a music station, you’ve suddenly got a tidy list of songs, identified (and sortable) by title or band. You can listen to individual songs, skip the turkeys and otherwise enjoy your totally free song collection. It’s crazy cool, like a hybrid of iTunes and satellite radio.

Of course, there have been desktop software products that have done the same thing for ages. But automatically dumping the mp3s into a music locker, which -- unlike the Google's and Amazon music locker that have launched recently -- actually lets you download the mp3s in your locker, is something the labels surely won't like. In fact, lots of folks are predicting that lawsuits are on the way:

Internet entrepreneur Michael Robertson has just launched his own economic stimulus program. He’s going to provide jobs for a lot of lawyers.

That’s because Robertson has created a new online service called DAR.fm, which delivers a new way to listen to Internet radio streams. DAR.fm is a digital recorder for audio streams, capturing your favorite Internet radio shows whenever they’re broadcast so you can listen to them later. It works, it’s wonderful, and it’s very possibly doomed, because the world’s leading music recording companies will probably come after it with every attorney they have.

But, here's the thing: does such a service actually infringe? It's pretty clearly established that basic time shifting, such as with a TiVo, is considered legal. Separately, with the Second Circuit's Cablevision ruling (and the Supreme Court's refusal to hear the appeal), many consider the idea of a remote DVR to now be legal as well.

What it really comes down to is that such a service has the potential to upset the record labels (and radio broadcasters as well), but that, by itself, shouldn't be illegal. Instead this is Robertson demonstrating, yet again, what the technology makes possible, even if it's disruptive to those who don't realize that the distinction between a stream and a download and local and remote storage is basically irrelevant in an era of widespread broadband connectivity. But, being disruptive and demonstrating the power of technology doesn't make you immune from lawsuits... and judges often aren't so savvy on these issues.

Filed Under: audio, dvr, internet radio, michael robertson
Companies: dar.fm, mp3tunes

Amazon Launches Digital Music Locker, Even As Legality Is Still In Question

from the did-they-obtain-licenses? dept

Well, this could get interesting. While there are already a few digital music lockers on the market -- including services like MP3Tunes and MeCanto -- there's been plenty of talk over the past few months about the "big players" entering the market. Most of the focus has been on both Apple (which bought and shut down the music locker service Lala) and Google, but Amazon beat both companies to the starting line and launched its service a few hours ago.

The question that's most interesting to me is whether or not it's paying for licenses, and at this point, it's unclear. We've seen, for example, that the record labels are not happy about these services, with EMI in a legal fight with MP3Tunes. On top of that record labels are demanding additional fees and licenses, even though these lockers only allow people to store and stream music they already have. Whether or not Amazon paid any licenses is unclear. The News.com article linked above says "as of last week the online retailer giant had not obtained all the necessary licenses, but that Amazon might announce the service before all the negotiations were complete."

But here's my question: what necessary licenses? Why should anyone else have to pay a license to let me store and stream my own music? Update: Hypebot has more, saying that Amazon doesn't believe it needs licenses, and some of the labels (but not all) are upset. Specifically, Warner Music is pissed and is contemplating legal action, but other labels aren't quite as upset.

As for Amazon's actual service, I have no idea if it's compelling, but I will say it's rather silly and pointless that they're making me reupload music. I already have an Amazon S3 account which (among other things) I use to backup all of my (yes, legal and authorized) music. What would be great is if I could just point this new Amazon Cloud Player at my existing music that is already stored on Amazon's servers, and then stream it from there. But that does not appear to be an option. Instead, I would need to reload all of it (and since I have a lot more than 5 gigs of music, I'd have to pay multiple times for it. And, with anyone else launching a similar service, I'd probably have to upload it again and again.

Let's be honest here: that's not really a cloud service. A true cloud service would let me store my music wherever I wanted, and then point whatever streaming player I wanted at it... But, of course, I'm sure the record labels would want another bunch of licenses paid up in full before anything like that is ever allowed.

Filed Under: cloud, digital lockers, music, streaming
Companies: amazon, apple, google, mp3tunes

EMI So Scared Of EFF Amicus Brief In MP3Tunes Case, It Asks Court To Reject It

from the what-are-you-scared-of? dept

There's been a lot of attention paid on various news sites over the past few weeks to the motions for summary judgment in the MP3Tunes case. If you don't recall, EMI sued MP3Tunes and (separately) its founder, Michael Robertson, arguing that the music locker service violated copyright law, even though it's designed to let individuals store and access their own music -- but not to allow others to access that music. The whole case has been quite bizarre and we're finally getting close to at least an initial ruling on how the court sees things. I was waiting until that ruling came out to cover it, but EMI's latest move is somewhat baffling.

You see, the EFF, Public Knowledge, the Consumer Electronics Association and the Home Recording Rights Coalition teamed up to file an amicus brief. That's nothing surprising and barely noteworthy. Those groups file amicus briefs on all sorts of similar cases having to do with the entertainment industry trying to stretch the interpretation of copyright law in a way that hinders new technologies. What makes things odd is that EMI has filed to have the court bar the brief from being used. The arguments are somewhat silly. Effectively, they argue that the court had asked the parties to keep their own arguments for summary judgment to a minimum (less than 35 pages). However, EMI states, this brief is really just supporting MP3Tunes' position, and thus, giving MP3Tunes a way to get more arguments than the 35-page limit allows.

Of course, it seems like all this really serves to do is to call a lot more attention to the EFF/PK/CEA amicus brief and to make you wonder what the hell EMI is so scared of having the court read about. And, really, shouldn't EMI be focused on staying in business these days, rather than worrying about what folks like the EFF and PK have to say about copyright law? If you want, you can see both the amicus brief and EMI's complaint about it after the jump.

Filed Under: amicus brief, copyright, dmca, music lockers, safe harbors, storage lockers
Companies: cea, eff, emi, mp3tunes, public knowledge

Michael Robertson's Crowdsourced List Of 1,400 Examples Of EMI Giving Away Free Music; EMI Denies All But 3

from the um... dept

Want some free music from EMI? You may remember that EMI is in a legal battle with Michael Robertson and his current company MP3Tunes (well, one of his current companies). MP3Tunes is a music locker. It only lets you upload your own songs, but also does have a search engine, Sideload.com, that will search for freely available music online. As part of the lawsuit, EMI insisted that EMI has never authorized music to be posted for free online, so any and all music from EMI that is found by Sideload must be unauthorized. Except... of course. that's not true. EMI hands out free mp3s to journalists all the time to post, and often has them on their own website. When asked about it, EMI finally admitted to allowing a grand total of three songs to be distributed freely online.

To prove that EMI was lying, last fall, Michael Robertson offered up a bookmarklet that people could use to let him know whenever they found free MP3s of EMI music on legitimate sites (mainstream media, artist's own websites, label marketing sites, etc.). That "You Lie, EMI" bookmarklet seems to have worked wonders. Robertson has now collected over 1,400 examples of EMI giving away free MP3s. He's even put the whole list in a nice Google spreadsheet, so you can check it out yourself (and even see where EMI has put up free music).

I'm not surprised to see our friend Lily Allen on the list. As you may recall, last fall, right after Lily went on a bit of a rant about the evils of file sharing and distributing unauthorized music, we pointed out that on her official LilyAllenMusic website, she and EMI (who runs the website) were distributing mixtapes full of songs from EMI artists... and artists from other record labels as well (though, we doubt EMI got the rights to do that).

Either way, nice job crowdsourcing the proof that EMI does, in fact, lie:

This list is just a fraction of the songs EMI makes available, but it's irrefutable that EMI uses free song files as promotion. Astonishingly they are still telling the court that they don't authorize song files to be distributed for free. They are denying these songs are legitimate in spite of overwhelming evidence of MP3 files from retailers, blogs, artist sites, label sites, and marketing sites. Even when you point to one of their own corporate blogs which offers downloads they remain steadfast in their claim that they don't distribute MP3s online for free.

Thanks to the MP3tunes user community, we have powerful evidence to refute EMI's claims that they don't distribute promotional songs. I think it's one of the first examples of crowdsourcing evidence. The evidence was assembled not by parties to the litigation or their legal teams but citizens with a computer and motivation to help out. We'll learn later this year whether it will help MP3tunes prevail.

But weren't we just told by the head of PPL in the UK (home of EMI) that "there is no such thing" as "promotion" when it comes to music, and "for free" should be erased from our vocabulary. Perhaps that explains EMI's actions. They no longer recognize the concept of free promotion as existing after listening to Fran Nevrkla's speech.

Filed Under: free, michael robertson, mp3s, music, promotion
Companies: emi, mp3tunes

EMI Back To Trying To Personally Bankrupt Michael Robertson

from the despicable dept

It's one thing to try to influence politicians and laws to protect an incredibly obsolete business model. It's another thing to try to shut down innovative companies who are better serving the market than you can. But it's in an entirely different class of evil to go after individuals personally for the actions of companies, in an attempt to bankrupt them. Stand up and take a bow, EMI, for not just doing the latter, but then paying a witness, getting her to change her deposition and get a lawsuit reinstated against an individual after the judge had already tossed it out. EMI has leapfrogged to the front of the line for the most despicable record labels out there. No wonder their artists are jumping ship as fast as possible.

You may recall that EMI not only sued Michael Robertson's most recent company, MP3Tunes, but also sued Robertson personally, which is an intimidation technique that creates tremendous chilling effects for any executive or founder of any company. We thought it was good news a year ago, when the court dismissed the part against Robertson directly. The whole lawsuit seems crazy anyway. MP3Tunes isn't set up for infringement -- it just sets up a way for you to store your own songs online in a music locker for your own personal access. So the whole lawsuit is questionable anyway, but seems to be part of EMI's greater strategy of suing every innovative music startup.

However, a new ruling has apparently put Robertson personally back in the firing line, after MP3Tunes' former president gave a new deposition (after she was fired, and well after her original deposition). The new testimony apparently convinced the judge to reinstate the personal lawsuit against Robertson, though the judge doesn't seem to discount the fact that Emily Richards had been fired by Robertson (so her new testimony should be suspect already) and the rather interesting fact that EMI paid Richards $10,000. That combination of facts should raise plenty of credibility questions, but apparently did not.

So, once again, we're left with an incredibly chilling situation, where execs of companies are being sued personally -- exactly what the entire corporate structure is designed to prevent. So, congrats, EMI, for reaching a new low in misguided copyright-related lawsuits.

Filed Under: michael robertson
Companies: emi, mp3tunes

Michael Robertson Wants To Crowdsource Proof Of EMI's Lies: You Lie EMI Bookmarklet Available

from the have-fun-with-it dept

EMI has been involved in a lawsuit with MP3Tunes for a while now. The whole lawsuit seems weird, since MP3Tunes is about creating a storage locker for the songs you already have. But one of the points that MP3Tunes made in response to EMI's claims is that EMI was lying in saying that it has never authorized MP3s to be available online. Yet, MP3Tunes had found plenty of promotional tracks that EMI had clearly put online, and it was wondering why others were allowed to link to them, but EMI claimed it was infringement for MP3Tunes to point to those same songs. In presenting this point in court, MP3Tunes has been looking for more evidence of authorized EMI mp3s, and Michael Robertson has announced the "You Lie EMI" bookmarklet (found via Hypebot), that lets anyone help MP3Tunes find more authorized EMI mp3s. Basically, as you surf around, if you come across authorized songs that are available, you can click the bookmarklet, and it checks to see if the artists is an EMI artist, and then lets you submit the details. Whatever happens with the lawsuit itself, it's cool to see someone crowdsourcing data for their defense.

Filed Under: crowdsourcing, lies, michael robertson, mp3s
Companies: emi, mp3tunes

MP3Tunes Points Out EMI's Own Actions Contradict Its Lawsuit

from the authorized,-not-authorized dept

EMI's lawsuit against Michael Robertson's MP3Tunes has never made much sense. MP3Tunes isn't distributing any MP3s. It just lets you upload and store your own music, or, if the songs are publicly available elsewhere, to access those tunes. EMI threatened MP3Tunes if it didn't remove all EMI music, and then eventually sued. Yet, in MP3Tunes defense, it's pointing out that EMI, itself, has flooded the internet with its own free MP3s, thereby authorizing others to link to those tunes (exactly what MP3Tunes was doing). So, the argument goes, how is it okay for EMI to authorize the MP3s for everyone to link to except MP3Tunes? Given cases in the past that deal with the legality of deep linking, this seems like it could be a pretty strong argument...

Filed Under: copyright, music
Companies: emi, mp3tunes

This Is The New EMI? Trying To Personally Bankrupt CEOs Of Companies It Doesn't Like?

from the how-nice-of-them dept

Last year, a private equity firm took over the major record label EMI and announced that things were going to be different. It wasn't going to be anti-fan. It was going to look on the success stories of Radiohead and Nine Inch Nails not as a threat, but as an opportunity. It even threatened to leave the RIAA and the IFPI unless it pulled back on suing fans. It then went out and hired internet savvy executives who would (hopefully) contribute a different perspective to the running of a major record label.

But, in the midst of all of this, it hasn't really backed down from a variety of ridiculous lawsuits. For example, it's been a part of a lawsuit against an ISP that refuses to spy on its users and cut off those who do unauthorized file sharing. We also noted last year that it had sued Michael Robertson's startup, MP3Tunes. Now we tend to have a lot of fun accusing Robertson of having the same marketing strategy with every company he starts: piss off some established company, get sued. It seems to happen with pretty much every company he starts from MP3.com to Lindows/Linspire to SIPphone. So it really wasn't a huge surprise to see MP3Tunes sued -- though, it's difficult to see how a personal music storage locker that doesn't allow sharing could possibly be infringing.

However, now it appears that the "new" more "friendly" EMI isn't just suing MP3Tunes. According to Boing Boing and Michael Robertson, it's trying to extend the lawsuit to go after Robertson personally, saying that he should be personally liable. As you probably know, one of the purposes of a corporate structure is to limit the liability of the executives of a company. To go after Robertson personally makes very little sense unless the idea is to intimidate. Many executives will quickly settle in such circumstances so as to not open themselves up to such a huge liability. On top of that, the chilling effects are tremendous. Others won't even think of starting innovative services, for fear of being personally liable in a lawsuit.

Unless EMI pulls back its lawyers, I think we can safely conclude that the "new" EMI hasn't really changed much from the old EMI.

Filed Under: ceo liability, liability, michael robertson
Companies: emi, mp3tunes

Phew. Michael Robertson Finally Gets Sued

from the beginning-to-get-worried dept

For a little while there, we actually thought that Michael Robertson might have lost his touch. The serial entrepreneur had pretty near perfected his strategy for building startups: come up with a controversial business plan that totally undermines the business models of incumbents and then make sure you get sued for doing so, using that lawsuit as a publicity builder. He did it originally with MP3.com and then followed that up with Lindows (which eventually had to change its name to Linspire). Next up was SIPphone, but that one was so late to the game that it had to sue Vonage since no one was suing it. Nearly three years ago when Robertson started another music startup, MP3Tunes, we were sure that he would quickly get sued. In fact, it seemed even more likely when he hired Hollywood's most hated hacker, DVD Jon. Yet, for some reason, the two could not come up with a plan to get sued, causing DVD Jon to move on.

After waiting so long, Robertson again tried to stir things up himself. Back in September he sued record label EMI for takedown notices the company had sent over MP3tunes' sideload.com, and the strategy finally paid off. EMI has returned the favor and is now suing MP3Tunes for for copyright infringement. Robertson, of course, can barely withhold his glee: "These guys rush off to court and tell the court that I am terrible and then they end up buying my company," which is indeed what happened with MP3.com... though, in this case, we'd hardly say that the labels "rushed" off to court. It looks like they had to be coaxed a bit. He also makes the following important point: "It is really a shame because instead of using these technologies to improve their business they make an enemy of every technology company out there." It sure took a while, but congratulations on finally getting the lawsuit.

Filed Under: lawsuits, michael robertson
Companies: mp3tunes