EMI Loses Yet Again In Its Quixotic War With Michael Robertson And MP3Tunes

from the the-definition-of-insanity dept

After losing pretty badly on most of the key legal points in its silly lawsuit against Michael Robertson and MP3Tunes, EMI doubled down and told the judge he made two mistakes in his initial ruling, and asked him to reconsider both. However, in an amended ruling (embedded below) Judge William Pauley has not only rejected EMI's claims, but clarified his arguments even further, potentially making any appeal from EMI that much harder.

The two key points, as we discussed two months ago, were whether or not pre-1972 sound recordings were subject to the DMCA... and whether or not MP3Tunes really had a policy of dealing with repeat infringers. The pre-1972 issue is really, really important to the record labels. As we've discussed, pre-1972 sound recordings are not subject to federal copyright law, but rather more restrictive state copyright laws. Whether or not such songs are covered by the DMCA is a key element for the labels in planning their legal strategy. In Universal's lawsuit against Grooveshark, for example, it's just focused on pre-1972 songs, to try to cut off Grooveshark's DMCA safe harbors argument. But the court goes into great detail why that's a bogus argument, and that the DMCA's safe harbors were clearly intended to cover all copyrighted works, even those not covered by federal copyright law:

EMI's interpretation of 301(c) would eviscerate the purpose of the DMCA. "Where an examination of the statute as a whole demonstrates that a party's interpretation would lead to 'absurd or futile results ... plainly at variance with the policy of the legislation as a whole,' that interpretation should be rejected." Yerdon v. Henry,.... As discussed, the DMCA was enacted to clarify copyright law for internet service providers in order to foster fast and robust development of the internet. Limiting the DMCA to recordings after 1972, while excluding recordings before 1972, would spawn legal uncertainty and subject otherwise innocent internet service providers to liability for the acts of third parties. After all, it is not always evident (let alone discernible) whether a song was recorded before or after 1972. The plain meaning ofthe DMCA's safe harbors, read in light of their purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to February 15, 1972.

On the second key issue, EMI's filing for reconsideration sounded stronger, when only seeing EMI's side of the story. It claimed that the judge misconstrued certain claims by Robertson and MP3Tunes employees, suggesting that the company didn't really stop repeat infringers. However, it appears that EMI's quotes were taken incredibly out of context, and the judge had no problem putting them back into context and seeing that MP3Tunes did, in fact, deal properly with repeat infringers. In fact, the judge points out directly that EMI "mischaracterizes" Robertson's deposition testimony. Having a judge catching you trying to mislead him... is probably not good for your case.

But, perhaps even more importantly, the judge makes it clear that with a music locker like MP3Tunes, there's no legal reason why the company should automatically cut off someone who is a repeat infringer, since all uploads are for personal use, and not to the wider internet.

Blatant infringers typically are those who upload or post unauthorized content, allowing others to experience or copy the work. See Viacom v. YouTube.... (finding reasonable a policy that terminated users who uploaded content after warning); see also 10 Grp., Inc. v. Veoh Networks ... (same). The record reveals that MP3tunes' users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between (1) users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and (2) 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 download violates the copyrights of others.

The court also reminds that even if MP3Tunes execs discussed some sites where people accessed files and moved them into MP3Tunes own storage, and questioned whether or not they were infringing, they had no way of knowing, officially, if those files were actually infringing:

For example, MP3tunes employee e-mails reveal discussions about the legitimacy of some third-party sites and, on at least one occasion, a recommendation that a site be removed from Sideload.com. But ultimately there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on Sideload.com were unauthorized. (See Bart Decl. Exs. 64-66.) While knowledge is not an element of copyright infringement, it is relevant to a services provider's decision whether appropriate circumstances exist to terminate a user's account.

This is important for a number of reasons too, including the standard claim from copyright system defenders, insisting that it's "obvious" when something is infringing and sites should have to remove the content. As this court properly recognized, it's not at all obvious. Content may appear to be infringing, but may have been uploaded by an authorized person. Or there may be fair use. Courts determine what is and what is not infringing -- and random websites are in no position to do so, no matter how much the legacy entertainment industry likes to pretend otherwise.

Amusingly, in Robertson's own blog post about this ruling (linked above), he suggests a reason for EMI's decision to continue with this really pointless lawsuit: EMI exec turnover and upheaval is the perfect situation for lawyers to rack up billable hours, because no one's paying attention:

From the outset, many have been puzzled by EMI's decision to target MP3tunes as well as me personally with this lawsuit but it becomes clearer when one understands the chaos of EMI's management and their relationship to an outside legal firm. An outside corporation performs all the litigation work for EMI. This firm doesn't care if they win or lose the case because they get paid to fight. The more they fight, the more they get paid. This explains why in this latest move they went back to the same Judge with the same evidence telling him he got it wrong and asking him to reverse his findings. Unsurprisingly this rarely works, but it's a chance for more billable hours and to increase their bills to more than $6 million. The fact that it actually makes an appeal more difficult for EMI is a plus because that means more time will have to be spent on those creating even greater riches for the attorneys.

Extensive turnover in EMI's management means nobody is there to oversee the litigation costs or strategy. Currently EMI is owned by the megabank Citigroup who is likely unaware of the runaway legal expenses or fruitless strategy since they are concerned only with finding a buyer for EMI to get their multi-billion dollar investment back. The litigation firm senses this leadership vacuum and operates unimpeded taking every opportunity to drag out what is now a 4 year legal process with countless motions. An unlimited legal budget benefits only the lawyers not EMI. Maybe it will take a new owner to rein in the attorneys, but any objective analysis shows they are hurting EMI more than helping.

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

DAR.fm Receives Cease & Desist For Letting People Record Radio Online

from the how-dare-they dept

Earlier this year, we wrote about Michael Robertson's latest project, DAR.fm, noting that he was tempting copyright lawsuit fate again. DAR.fm is basically an online DVR for radio. It lets you record and listen to all sorts of online radio programming. As we noted at the time, it seemed inevitable that someone would challenge the legality of this -- but it seemed like the Second Circuit's ruling in the Cablevision online DVR case at least presented him with a case that supported his general view that such time shifting of radio, even if done remotely, is legal.

Either way, it appears he's received his first cease & desist, which comes from Univision and is embedded below. Robertson is making his case against Univision publicly, first pointing out that it seems to be reacting the same way the TV industry did to TiVo and ReplayTV:

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision.

He goes on to make the case that such time shifting is quite common and legal. In fact, he points out that Univision is more known for its TV stations, and are they really arguing that a DVR is legal for video, but a DAR is not for audio?

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

It will come as little surprise that I think DAR.fm should be legal, but the courts can be funny about this kind of thing. Even though, functionally, it may seem identical to a DVR, having it actually go to court is a crapshoot. Still, if Univision is smart, it'll back down on this. Making their stations and programs more difficult to listen to hardly seems like a compelling business strategy.

Filed Under: copyright, dvr, michael robertson, recording
Companies: dar.fm, univision

EMI: There Should Be No Safe Harbors For Pre-1972 Songs

from the because-that's-how-we-shake-down-service-providers dept

Ah, desperation on the part of a major record label is so sad. Following the judge's ruling in the MP3tunes case, which protected the basic concepts of DMCA safe harbors for music lockers, EMI is now asking the judge to reconsider two key points in the ruling. The first is whether or not the DMCA applies to pre-1972 recordings. As we've discussed in the past, sound recordings from before 1972 are not covered under federal copyright law, but a variety of (dreadful) state copyright laws. This is, depending on how you look at things, either an accident of history, or an accurate recognition by Congress in 1909 that the Constitution does not allow Congress to let copyright cover sound recordings.

Either way, the RIAA and its labels love the fact that pre-1972 recordings don't fall under federal copyright law, because it keeps songs out of the public domain for much longer -- since the mass of state laws are even more ridiculous in many ways.

One of the issues in the MP3Tunes case was whether or not the pre-1972 recordings were subject to DMCA safe harbor protection, and the court -- quite reasonably -- ruled that they were, pointing to the plain language of the law. EMI is really upset about this and insisting that there should be no safe harbors. This lays bare the RIAA's other cynical ploy in its bag of tricks. If there are no safe harbors for pre-1972 recordings, then that would mean that the labels could go after all sorts of service providers demanding cash for actions of their users. Someone uploaded a Beatles tune to YouTube? Well, according to the RIAA/EMI's argument, YouTube should be liable.

Yeah, they're getting desperate, when their remaining playing cards include figuring out ways to shake down third parties rather than improve their business model.

EMI separately argues that the court was mistaken in believing that MP3Tunes effectively disabled accounts of repeat infringers. On this point, it suggests that the court was either misled or misunderstood what MP3Tunes had done in terms of disabling accounts. The basic argument is that MP3Tunes insisted for a while that it did not terminate accounts for infringement, but then later claimed that it did -- and the court just accepted the latter argument. Here, EMI's basic claims do read much stronger, and MP3Tunes will certainly have to explain the discrepancy in statements from company employees. Either way, as expected, this case is far from over.

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

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

Homeland Security Appears To Be Stalling On FOIA Requests Concerning Domain Seizures

from the violating-the-foia? dept

We're still waiting for the full response to our own Freedom of Information Act request concerning ICE's PSA (though, we have some more info on that which we'll be sharing soon). It's still well within the reasonable period of time to reply, and we've been told that progress is being made on the request, so that all sounds good. However, Michael Robertson passed along the news that back in January, he filed a FOIA request of his own, on behalf of his organization NakedGovernment.org, seeking any information and documents within ICE concerning the domain seizures found in "Operation in Our Sites."

Initially, as is fairly typical with FOIA requests, the ICE FOIA officials were responsive, friendly and helpful. Following a rather broad request, the FOIA official at ICE suggested that NakedGovernment narrow its request to documents concerning the domain seizures that are stored in the TECS (Treasury Enforcement Communications System) database. NakedGovernment also forked over the cash that ICE requested in order to conduct this search. At the end of March, ICE FOIA officials told NakedGovernment that they had received the check and "will begin processing your request and will respond..."

And that's all they wrote. Since the end of March, no additional response has been forthcoming, even though NakedGovernment has followed up with ICE requesting the status of the request. It's difficult to see how this request could possibly take more than two months to process. I'm hopeful that my (quite narrow) request won't take nearly as long. Update: Michael Robertson informs me that ICE has just indicated that it has obtained the documents in question, and they now need to "be processed" which will then be followed by a "supervisory review." So, keep waiting...

Filed Under: domain seizures, foia, freedom of information, michael robertson

Michael Robertson Facing Resistance To New Gov't Transparency Project

from the sunlight-is-tough dept

Over the last few years, there have been a number of important efforts to increase transparency, openness and accountability from the government -- often by concerned citizens. For example, there have been things like the Sunlight Foundation, as well as efforts by people like Carl Malamud to digitize and make available all sorts of government information. There have also been some specifically targeted projects, such as the effort by some grad students at Princeton to put together the RECAP project to make court documents more easily accessible for free. And, of course, there have been high profile projects such as Wikileaks, which is often looking for leaked, rather than officially obtained, government information.

It looks like serial entrepreneur Michael Robertson is about to get into the game as well. He's planning to launch the "Naked Government," project in the near future. The idea is to catalog public documents, demand more access to information that should be public... and also to highlight who else has been requesting public information. To kick it off, Robertson and others at Naked Government have been making requests for public information, such as names, titles and salary information of various school districts in Southern California.

While many have complied, some have tried to push back. Robertson told me that organizations have even claimed "we don't have a list of people who work for us and their salaries." Others have argued they don't have the information digitally, and thus don't have to provide it. Some asked for outrageously high compensation to produce the data. In one case -- involving Robertson's home school district, the Del Mar Union School District, which his children attend -- the school has argued that privacy rights prevented them from revealing the data.

This resulted in some back and forth between the school district and Naked Government employees, with the school district at first claiming that anyone who made less than $100,000 did not have to have their salaries disclosed. The district's lawyers were relying on a lawsuit where someone had requested the salaries of any Oakland employees making more than $100,000, which the court said should be revealed. The $100,000 number came from the request -- it was never a condition set by the court. The court gave no indication that there was any different rule for those making less than $100,000. At another point, after promising to provide the information to Robertson, the district sent him a list of titles and salaries... but with the names blacked out. This went on for a few weeks, with Robertson threatening legal action before the district finally complied and handed over all the info.

It should be interesting to see where this project goes, as it's always good to see more public accountability efforts out there on public information and records. Robertson, of course, is somewhat famous for ending up in court. I'm having trouble thinking of any of his startups where he didn't end up in court one way or the other -- though, he often used those legal fights to drum up more attention for what his companies were doing, which can be a decent strategy if (a) you're in the legal right and (b) you can withstand the hellish process of being involved in a lawsuit. We'll be watching this project closely and hoping that it adds to government transparency.

Filed Under: government, michael robertson, transparency
Companies: naked government

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