Judge Adjusts MP3Tunes Ruling, Blasts Everyone

from the some-good,-some-bad dept

We've been following Capitol Records' (EMI) lawsuit against MP3Tunes and Michael Robertson for a long time now, in part because the lawsuit has been going on forever, with lots of back and forth (and it's still at the district court level!). Back in March, the jury hit Robertson with a bill for over $40 million for his personal involvement with MP3Tunes. As we noted, there were plenty of issues with the ruling, especially with the idea that MP3Tunes was "willfully blind" in creating its music locker. Robertson challenged many of the jury's findings, and we noted that the most important one was the willful blindness.

The judge, William Pauley, has now ruled and it's a mixed bag of just about everything, including the judge berating both parties for their approach to this lawsuit. On the whole, Robertson still loses big time, but not quite as big as before. And, on the issue we found most important -- willful blindness -- the judge has overruled the jury, noting that under the standard in the Viacom v. YouTube case, MP3Tunes was not willfully blind (except for one track where they had been alerted to an infringing copy). That's big and very important, given the potential chilling effects the willful blindness ruling would have had on other startups in the digital locker space.

Red flag knowledge requires awareness of facts that would have made specific instances of infringement objectively obvious to a reasonable person.... General knowledge is insufficient. For example, knowledge that a high percentage of content on a domain is infringing does not establish actual or red flag knowledge of particular instances of infringement.... In this case, MP3tunes lacked even general knowledge. Even if MP3tunes tracked domains posting infringing files, a fact not in evidence..., MP3tunes would still need to investigate how much content the domain hosted before it could calculate what percentage was infringing.

To ascribe red flag knowledge to MP3tunes because it was possible for MP3tunes to research and identify other instances of infringing content hosted by these domains and sideloaded by users would "mandate an amorphous obligation to 'take commercially reasonable steps' in response to generalized awareness of infringement." ... But the DMCA imposes a duty on providers to track repeat infringement by users, not third parties....

The same reasoning disposes of the willful blindness argument. Imputing knowledge to MP3tunes would impose an obligation to affirmatively monitor content, which would contravene section 512(m)'s clear instruction that no such obligation exists.... Therefore, Robertson's motion for judgment as a matter of law is granted as to his liability for secondary infringement of tracks sideloaded by users from these domains.

This is the good news from the ruling. Robertson also more or less won on the issue of whether or not the cover art images that showed up in MP3Tunes were infringing. That was one of the many ridiculous side notes in the whole thing.

One other thing that turned out somewhat well was on the question of whether some of the penalties given to Robertson by the jury were unconstitutionally excessive. This is a claim that has previously been tried (unsuccessfully) in the famed Jamie Thomas Rasset and Joel Tenenbaum trials. But here, it actually worked somewhat. The court goes through the different factors to determine if a monetary award is excessive, given the actual harm, and concludes:

Viewed holistically, the punitive damages award violates due process.

Still, the judge argues there's plenty of reasons to punish Robertson, just not to the punitive damages tune of $7.5 million as the jury originally decided. The court reduces that to $750,000, but offers EMI the chance to hold yet another trial just over this issue (which would only add yet another chapter in this incredibly long saga). And of course, none of this even touches on the possibility of appeals (from both sides), which may still happen...

However, there's plenty of worrisome aspects to this new ruling as well. After the willful blindness issue, our biggest concern was the tertiary liability claims that EMI was making against Robertson. That is, we've now seen that secondary liability is a possible for copyright infringement (i.e., you can be guilty for someone else's infringement), even though that makes little sense. However, in this case, EMI advanced an even more tenuous argument: that Robertson was tertiarily liable for MP3Tunes' secondary liability of its users direct infringement. Unfortunately, the judge says this is fine, arguing that while the judge in the Napster case rejected such a theory, the judge in the Limewire case accepted it, and thus "tertiary liability" is a perfectly reasonable thing. That's going to have some serious chilling effects -- just wait and see.

The court also makes one interesting note concerning the Aereo ruling. EMI sought to use the Aereo ruling as evidence that MP3Tunes was guilty of "public performance" of the works as well, but the judge (thankfully) shut that down, noting that the Supreme Court in Aereo was clear that the ruling only applied narrowly to that specific case:

Plaintiffs also argue that the Supreme court's opinion in Aereo establishes that the third-party websites performed the work publicly. But the Supreme Court expressly excluded "novel issues not before the Court, as to which 'Congress has not plainly marked [the] course.'" ... Because the third-party domains here are not "substantially similar" to a community antenna television provider, they are beyond Aereo's reach.

Phew. Aereo bullet dodged there, for now.

Then we get around to the berating. The judge gets on the EMI execs' cases for how they treated the case, and their ongoing refusal to reveal the dates of the releases of various songs, despite being asked repeatedly. But the real slamming comes for Robertson, who apparently put on quite a show on the witness stand. While that may work in Hollywood movies, or made-for-CNN trials, it doesn't often work in real life, and it appears not to have worked here. The judge's own description of Robertson's appearance indicates that no one bought the performance at all:

This Court observed Robertson's demeanor on the witness stand. No transcript can capture his whole affect; you really had to be there.

The judge then reposts Robertson's somewhat lengthy and bizarre discussion of childhood abuse, which seemed to serve no purpose other than to (try to) tug at the heartstrings of the jury. The court (and the jury) were not impressed:

This seemingly rehearsed, five-minute fable-like narrative left the jury nonplussed and Plaintiffs' counsel shell-shocked. It was a dramatic presentation. Even if true, Robertson's decision to spin this yarn backfired on him. The jury saw it for what it was--a transparent attempt to tug at their heartstrings. Plainfiffs' counsel failed to appreciate what the jury grasped and reflexively moved for a mistrial claiming unfair prejudice. But Robertson's manipulative conduct only prejudiced him and that prejudice was not unfair. In denying Plaintiffs' motion, this Court observed "[j]urors see through performances, and the Oscars are over for this year." The jury's verdict demonstrated that this Court's observation was spot on.

Ouch.

Filed Under: copyright, michael robertson, red flag knowledge, secondary liability, tertiary liability, willful blindness
Companies: capitol records, emi, mp3tunes

Michael Robertson Challenges Ruling That Says He Has To Pay Over $40 Million For Copyright Infringement

from the red-flags-indeed dept

Earlier this year, we wrote about the troubling ruling against MP3Tunes.com, in which it was found to be "willfully blind" to infringement on its music locker service -- raising serious questions for basically any cloud service provider. EMI, the record label suing, used an incredibly low standard for what it considered to be willful blindness, but the jury bought it. On top of that, it found MP3Tunes founder Michael Robertson not just personally liable for certain infringement, but said he'd have to pay somewhere around $41 million for it.

In response, Robertson is fighting back, asking the judge to basically overrule the jury on a number of different matters. There's a lot in the filing that's worth reading, but it highlights just how crazy some of the details are in this case. The biggest issue is the whole "willful blindness" issue or "red flag knowledge." As other courts have noted, this has to be in reference to specific instances of infringement -- but that wasn't shown for many of the files in this case. Rather, the jury was only told of general infringement. This was the issue at the center of the big YouTube/Viacom case, in which YouTube won the argument that Viacom had to show red flag knowledge of specific infringement, rather than just arguing general knowledge of infringement. Yet, in this case, the issue seems to have been flipped.

There's also the troubling aspect of how the jury found Robertson guilty of not just direct infringement (of 22 files), but also "vicarious and contributory liability" on a list of over 2000 additional works. But, as Robertson notes, for that to be the case, EMI would have to have shown Robertson receiving a direct financial benefit from that infringing activity, and, in fact, Robertson received nothing from the infringement, or the company -- instead, he lost millions.

The trial record is devoid of evidence that Robertson received any such direct financial benefit. In fact, not only did Robertson not receive any direct financial benefit from MP3tunes’ and its users’ infringing activity, he personally invested and lost over $6.8 million. Moreover, uncontroverted trial testimony shows that Robertson has (a) never taken a salary or a bonus from MP3tunes... and (b) never received any dividends or any distribution, even directly or indirectly through any of the trusts, from MP3tunes...

Tellingly, Plaintiffs do not dispute these facts. Instead, they argued that Robertson could have made money, if his plan had been a success.... But the Liability Charge rejected such hypothetical conjecture; rather, it requires that “Robertson received a financial benefit directly attributable to the infringing activity of MP3tunes.” .... Indeed, the very conjecture Plaintiffs assert is itself an implicit admission that Robertson did not receive a financial benefit. ... (“Had he succeeded and signed up millions of users, he could have taken the company public, gotten investors or sold the company”) (emphasis added)). Such speculative conjecture is too remote to support vicarious copyright liability

Furthermore, it notes how the jury appears to have confused benefit for the company with benefit for Robertson directly. Furthermore, he argues that some of the arguments seem entirely based on a made up concept of tertiary liability. Basically, the jury argued that MP3Tunes has secondary liability for the actions of its users (already a questionable statement, given its compliance with the DMCA's safe harbors), and beyond that Robertson thus has tertiary liability for MP3Tunes' secondary liability. Anyone who believes in the nature of a limited liability corporation, and separating the liability of the company from its staff, might want to pay attention to that issue.

Under the charge, Robertson may be liable for MP3tunes’ secondary liability without any proof of his knowledge of, benefit from, or contribution in, the users’ direct infringement; and without any direct infringement by MP3tunes. That simply is not the law, and is contrary to the fundamental limits of secondary liability.

On the willful blindness/red flag issue, Robertson notes the made up and artificial standard that EMI uses, that if they had recieved DMCA notices with 10 or more links to a particular website, they had red flag knowledge that all links from that website must be infringing.

Plaintiffs simply counted the number of occurrences of domains in their takedown notices, and when the count reached 10, assigned to MP3tunes willful blindness or red flag knowledge that all sideloads from such domain were infringing. That is insufficient. MP3tunes could not discern any specific instances of infringement merely from the fact that any particular domain was present more than 10 times on takedown notices. In fact, counting the number of occurrences on takedown notices does not even rise to a showing of “a high probability of general infringement” or “a generalized awareness of infringement,” which are not enough to establish willful blindness or red flag knowledge.

In addition, the number “10” was plucked from thin air. Why not three? Why not 15 or 20? Where was the evidence showing the significance of 10 occurrences? Moreover, the lack of notice of specifically infringed works means MP3tunes had to conduct an investigation to determine which works were infringed: (i) which domains met the threshold of 10; (ii) which works were owned by Plaintiffs; and (iii) which works were sideloaded without authorization.

He further presents proof that EMI itself miscounted. Five out of thirteen domains they listed had errors. On top of that, he points out that EMI itself authorized free MP3s on many of those domains. In other words, there were authorized works on those same sites, which EMI insists Robertson must have known were infringing.

There are other issues raised in the filing as well, which you can read below, including questions about liability on cover art images. The specific legal issues in the case concerning secondary liability and red flag knowledge are quite important, because it will absolutely be cited as precedent in other cases as well. Unfortunately, as we've noted for a while there's sometimes a difference between "real law" and "file sharing law" in which courts decide if something feels like infringement and then twists itself to make it so. This case has all the indications of a court feeling like Robertson did something wrong, even if it doesn't seem to actually fit under the law. Thus, the effort here may be quite a long shot. Unfortunately, the ramifications of that will be felt by tons of other services, especially those in the cloud computing space.

Filed Under: contributory infringement, copyright, dmca, michael robertson, red flag knowledge, safe harbors, secondary liability, tertiary liability
Companies: emi, mp3tunes

Jury Hits Michael Robertson With Estimated $41 Million Infringement Bill Over MP3Tunes

from the excessive? dept

Following last week's decision by a jury that Michael Robertson could be held personally liable for songs that he "sideloaded" into his MP3Tunes music locker via the site's Sideload.com feature, the jury has now issued a verdict so complicated that no one is quite sure how much Robertson is being ordered to pay, but it's believed to be in the range of $41 million. The verdict seems questionable on a variety of levels, not the least of which is that MP3Tunes apparently had, and followed, a clear DMCA takedown policy (which an earlier court ruling had found to be sufficient). Where this case became more complicated was over the question of whether or not the company had "red flag knowledge" of infringement and whether Robertson himself was liable, in that he'd "sideloaded" certain songs that he'd found publicly available elsewhere online into his music locker. The details of the apparently very complex ruling will be important, but anyone who runs a cloud computing service might want to pay attention to this case, as it's going to be a rather important one as it moves through the appeals process.

Filed Under: copyright, infringement, jury, michael robertson, sideloading
Companies: capitol records, emi, mp3tunes

Jury Says MP3Tunes Was 'Willfully Blind' In Building A Music Locker

from the well-there-goes-that-one dept

While the Google/Viacom lawsuit over YouTube settled this week, one case that it had a direct impact on was the lawsuit of Capitol Records/EMI against MP3Tunes and its founder Michael Robertson. The entire lawsuit seemed to be yet another case involving the record labels just being generally angry about innovation, which is why it targeted Robertson personally. While MP3Tunes initially, won, the court still found that Robertson could be personally liable for songs that he had "sideloaded" himself as a part of the service.

The case then bounced around a bit, and with the appeals court ruling in the YouTube case, the judge in the MP3Tunes case withdrew the original ruling and decided to take another look. That's now resulted in a jury apparently finding that MP3Tunes was "willfully blind" to infringement. That's a troubling find on many levels. While the link above focuses on the jury also finding Robertson personally liable for "sideloading" songs, that part isn't all that surprising. Without thinking too deeply about it, it's no surprise that a jury would think that sideloading (moving songs found publicly online into a locker) might violate copyright law, even if it does raise some significant legal issues. Robertson made the rather valid point that it was impossible for him to know if the songs were infringing, especially since EMI itself was giving away songs for free, and knew that having such songs freely available increased sales. So to blame him for not knowing which songs were authorized and which were not seems unfair -- but the jury apparently disagrees.

What's much more concerning is this claim that an online locker service might be deemed "willfully blind" to infringement, even in the absence of things like DMCA notices. It raises serious questions for pretty much all cloud services that might store content, much of which may be covered by someone's copyright.

Filed Under: copyright, dmca, michael robertson, music lockers, willfully blind
Companies: emi, mp3tunes

Legislators Rush To Patch Hole In 'Secret Photography' Law; 'Succeed' In Making It Make It Much, Much Worse

from the fixitfixitfixitfixitfixitfixitfixit! dept

The law is an ass. This has been true since well before Charles Dickens cranked out Oliver Twist in order to fulfill his four-book contract with Penguin Classics. We also hear quite frequently how the law's ass-ish gears (sorry, some metaphors are going be forcibly combined here) grind slowly, eventually birthing justice itself or, far more frequently, suffering a miscarriage.

Sometimes, however, the law is like an ass operating a second-rate rollercoaster for a third-rate traveling carnival in a fourth-rate town. It lurches forward and backward like a carny with a .28 BAC (also known as "cruising altitude"), with one hand lazily manipulating the rusty throttle/brake on this metaphorical coaster, giving every rider the opportunity to lose their lunches while simultaneously suffering whiplash.

Here's how everything went down.

On March 5th, the Massachusetts state supreme court found that "upskirt" photography was perfectly legal according to state law. The law, as (was) written, offered no protection for clothed individuals in public places. Dressing rooms, bathrooms, etc. were off-limits, clothed or not, but nothing in the law specifically protected the (clothed) public from people like Michael Robertson, who was caught by police holding his phone at waist-level to capture upskirt photos of fellow subway passengers.

Needless to say, outrage ensued. Instant outrage that ensnared several lawmakers, all of whom immediately rewrote the statute governing "secret photography" in order to prevent the state's pervert contingent from instantly turning every subway car into an (ultimately disappointing) sausage/camera fest.

When I say "immediately," I actually mean it. The rewrite was voted and passed March 6th and signed into law by the governor on the morning of March 7th. Within 48 hours, "upskirting" had gone from "presumably illegal" to "legal" to "very certainly illegal."

As is the case with any law based on instant reaction (you know, rather than a deliberative legislative process), it's problematic in its expansive terminology, as Jay Wolman of The Legal Satyricon points out.

Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Here's what's being inserted into the state's law governing "Photographing, videotaping or electronically surveilling partially nude or nude person(s):"

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both fine and imprisonment.

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child’s clothing to view or attempt to view the child’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 2½ years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

That's a lot of area being covered and none of it very specifically. It relies on a "reasonable person's" view of the intent of the photographer. When that "reasonable person" is a prosecutor, the obvious unintended collateral damage becomes apparent.

The law practically invites bystanders to point and scream like pod people whenever someone operates a cellphone or camera from lower than eye level. And while it attempts to address the previous law's shortcomings, it seems to leave decolletage enthusiasts free to do their thing (like shooting photos from above passersby, rather than under or around).

But it also turns anything merely questionable (photography-wise) into something potentially actionable. Any "secret" (read: "surveillance") photography could easily become an issue simply because the person being photographed is unaware of the camera's existence.

To expand on Wolman's example: you catch your nanny stealing using your home's camera system, but he or she spins it as "secret photography" and points out the frames that seem to catch him or her in positions that are "revealing." Good luck proving that you didn't set up the camera solely in hopes of catching a nude or nearly-nude nanny at some point in time. For that matter, good luck proving that the above wasn't merely one of the reasons you set up the camera.

And if your nanny is under the age of 18 (or substitute "babysitter" for "nanny"), you're in even more trouble. The prosecutor's not going to hit this law and stop. You'll also be looking at potential child pornography charges.

The state has to prove intent to make charges stick, but all that truly means is that it has to drop these accusations in front of a grand jury (the misdemeanor becomes a felony if the captured images are "distributed") and you're as good as convicted. An indictment looks a lot like a criminal sentence, especially if legislators are breathing (heavily) down prosecutors' necks, urging them to pursue maximum sentences and bail.

So, once again, we see legislative whiplash turning a questionable law into a terrible law. This isn't ever going to change. The only hope is that, once time and distance take their toll, the law will be revisited and repaired. In the meantime, citizens of Massachusetts will need to keep their cameras up high, completely visible and miles away from children, women in skirts, and anyone else whose clothing might reveal something if approached from lower/oblique angles.

Filed Under: massachusetts, michael robertson, photography, privacy

Old EMI Email Shows They Knew That Giving Away Songs For Free Leads To More Sales

from the well-look-at-that dept

We already wrote about the recent filing in the EMI v. MP3Tunes case, in which Michael Robertson shows that (contrary to EMI's statements to the court) EMI regularly promoted its music by giving out free MP3s. However, I wanted to do a separate post looking at one specific email highlighted in the filing. It shows an email from 2008 from Stephen Gullberg, an employee of EMI Publishing, talking about marketing plans involving giving away free MP3 downloads. I've bolded the parts that struck me as particularly interesting. Gullberg is emailing with a counterpart at EMI:

Free Promotional MP3 of one song to the public for free download from Peter Moréns album (as do most indie labels). They would offer "Social Competence" for free download on touchandgorecords.com, Peter and Touch and Go's Myspace pages, plus encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site. We are being told that historically the track which is offered for free like this is usually still the top selling track in digital retail. They would like to offer this promotional MP3 download for nine months. After that initially period the promotional partners will replace the MP3 download with a stream for the duration of the license of the album including offering a stream of the song on their website and on their Myspace page and Peter's Myspace page, or until they decide to ask these partners to remove the stream.

The label has given us a further explanation of why they pursue this strategy. One promotional MP3 per album is the best way they can virally promote the album which will increase sales and thus revenue on the compositional side as well as the master recording side. This promotional technique has proven to be so effective, that virtually every free track they have issued from an album has maintained itself as the top selling track from the album. It also enables them to offer something from the album to the myriad of sites, blogs, podcasts out there that would be tempted to give away unauthorized materials, perhaps the entire album, if they do not have the option to feature a track that they offer to them. This control mechanism is vital to their methods of slowing piracy of albums.

And yet, all this time, the RIAA keeps insisting that free music is a problem? Even as employees at the labels knew years ago that free was "so effective" as a promotional technique that it helped sell the same track much more.

Filed Under: michael robertson, mp3, stephen gullberg
Companies: emi, mp3tunes

EMI Was Actively Giving Away MP3s It Accused Michael Roberston Of Downloading Illegally

from the oops dept

You may recall EMI / Capitol Records ongoing lawsuit against MP3Tunes and its founder/CEO Michael Robertson. The initial ruling in that case went almost entirely against EMI, with one small exception that we'll get to soon. EMI asked the court to reconsider the ruling, claiming that it had made some mistakes, but the court slammed EMI for some questionable behavior, including taking a number of quotes completely out of context as an attempt to mislead the court. The latest on that case is that following the appeals court ruling in the YouTube/Viacom case that sent that case back to the lower court, EMI pretended that the ruling changed everything and required a new ruling. The two sides are currently filing motions back and forth over that, with MP3Tunes pointing out that nothing in that ruling actually changes anything, and EMI claiming otherwise. Given the narrow aspects of the Viacom ruling, I think that EMI is still unlikely to get very far. Still, it's fairly amazing how much time, money and effort it has spent on this case, even as the company itself got into serious trouble and was sold off in, effectively, a fire sale.

Which then brings us to the other aspect of the case. The one area in which EMI "prevailed" in the original case was in the part they filed against Robertson personally. The court had ruled on summary judgment that Robertson was liable directly for 47 songs that he had personally "sideloaded" into MP3Tunes. However, even that part of the case was strange. Initially, EMI had claimed that it had never, ever, ever authorized any MP3s to be given out for free for promotional purposes. In response, Robertson crowdsourced examples of over 1,400 cases where EMI was clearly giving away MP3s for free. However, the court still ruled that he was liable.

In the latest filing about that, Robertson hits back on a number of points, starting with the fact that the court ruled on summary judgment on the issue, even though EMI and Robertson had already agreed that the summary judgment part of the dispute wouldn't cover Robertson's personal liability. Because of that, he didn't present the full argument for why he shouldn't be liable, and thus he's asking that the court allow that part to go to trial in order to show that the evidence of his own infringement is lacking.

In order to support that, Robertson's filing demonstrates a few important things. First, it shows a bunch of evidence that EMI purposefully and deliberately marketed its music to various sites asking them to give away MP3s and even to share the music widely. Second, it shows that, despite being asked for this info during discovery, EMI did not provide it. Instead, Robertson got it later from other sources. This is a big no-no, and EMI may run into some issues for failing to hand over the required information during discovery. Still, what the filing shows is that EMI regularly and frequently hired companies to distribute MP3s for free, and encouraged them to be put up on various websites and shared widely. And this includes some of the songs that Robertson is accused of infringing and some of the sites he's accused of downloading the songs from.

Reading pages five through nine in the motion he filed demonstrates this over and over again, including in an email from an EMI Publishing employee, who not only is planning a promotional download but says part of the plan is to "encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site." Here's just a snippet of some of the examples Robertson turned up of EMI using free MP3s in marketing (which they did not properly disclose):

For example, Definitive Jux (an EMI label) entered into an agreement with viral marketing firm, Better Propaganda, which granted Better Propaganda the right "to use, copy, distribute, display and perform [a specified song] on and through the Internet and the World Wide Web..."). This song remains available on the Better Propaganda site. Plaintiffs did not produce this document....

Similarly, Astralwerks (another EMI label) engaged Toolshed, Inc. ("Toolshed"), a Viral marketing firm, to distribute sound recordings pursuant to a marketing program by which Toolshed would virally distribute free MP3 downloads through various blogs and Toolshed's own website. Importantly, Toolshed's webpage for downloads notes clearly that "All songs . . . are pre-licensed for use on your site. Simply browse, find music you like, and copy it to your page." .... Toolshed has done projects for numerous labels, including EMI labels Astralwerks, Capitol Records, Caroline Records and Definitive Jux Toolshed distributed free MP3s for numerous of Plaintiffs' artists -- including Air, Willy Mason, Bat for Lashes, Pacificl, Carbon/Silicon, The Perceptionists, and Amos Lee -- including one of the same artists that Robertson is accused of wrongfully sideloading.... Plaintiffs did not produce documents they exchanged with Toolshed relating to those projects.

One project by Toolshed is especially important: as emails (dated March 5, 2007) provided to Robertson from Toolshed indicate, Astralwerks paid Toolshed to get websites to give away MP3s for the new release of the album "Pocket Symphony" by Air, to be released on March 6, 2007.... Toolshed achieved coverage, including free downloads of a track and/or video placement, with numerous sites, including 3HiVe, Donewaiting, Kevchino, Music for Kids Who Can't Read Good, Muzzle of Bees, PopMatters, Sixeyes, Stereogum, Antville, and Kingbline..., some of the same sites and the same artist from which Robertson is accused of wrongfully downloading Plaintiffs' songs and which Plaintiffs have alleged are unauthorized sources of MP3's.... Plaintiffs did not produce such documents.

In many ways, this is reminiscent of the whole Dajaz1 situation, in which the lawyers are insisting that the distribution on various blogs is infringing, at the very same time that their marketing people are begging those same sites to offer up the songs as a promotion.

Separate from all of this, but in the same filing, Robertson hits back on the claims that the use of cover art in MP3Tunes infringed. The filing notes that MP3Tunes had licensed all the cover art from Amazon and that EMI never even bother to show that it held the copyright in the cover art. All they showed was that the company had copyrights in the songs, but that's different from the cover art (and made more complicated by the fact that the copyright in the cover art might belong to the artists who created the art, rather than EMI).

All in all, the filing reinforces what's already come out in the earlier rulings: which is that EMI seems to have an incredibly weak case here, but due to what appears to be a random infatuation with going after Robertson personally, is just throwing everything it can at him.

Filed Under: copyright, downloads, infringement, michael robertson, promotions

Michael Robertson Continues To Tempt Copyright Fate With UberTalk: Recordable Radio Directory Online

from the what-technology-allows dept

Michael Robertson has a long history of pushing the boundaries of copyright law, by going where the technology allows, even if the law hasn't quite caught up yet. As such, he frequently finds himself on the wrong end of legal actions from legacy players who hate being disrupted. Last year, we wrote about his DAR.fm effort, which basically is an online DVR for broadcast radio. He's now taking that even further, with the launch of UberTalk, an online directory of what's on radio right now (and in the future). You know your basic online (or on screen) TV guides? Yeah, UberTalk is that, but for radio -- with the convenient ability to play... or to record and time shift anything you'd like. Given the state of radio today, this seems really, really useful. But, is it legal? We've already seen legal threats pointed at DAR.fm, and I can't imagine that all the broadcast folks will like this either -- even though it only increases the value of their product by making it more easy to find and useful.

What we're seeing, yet again, is how the technology allows for something really useful that adds value to both the content and for the users. And yet... copyright law makes it very, very difficult to pull off. Why? Because copyright law is purposely built around keeping the status quo, not about encouraging innovation. So you have yet another clear case where it seems like copyright law is holding back "the progress" rather than helping to speed it along.

Filed Under: directory, dvr, guide, michael robertson, radio, recording
Companies: dar.fm, ubertalk

EMI Adds Insult To Bankruptcy In Misguided Gloating Over MP3Tunes Demise

from the time-poorly-spent dept

We already wrote about EMI's success in bankrupting MP3Tunes via overly aggressive litigation. But, now the company has decided to add insult to bankruptcy with a bizarrely gloating statement provided to News.com's Greg Sandoval.

Since November 2007, EMI Music and EMI Music Publishing have been engaged in a lawsuit with MP3tunes and its principal, Michael Robertson, in connection with Mr. Robertson's facilitation of widespread copyright infringement on MP3tunes.com and Sideload.com. These sites have built their businesses on the unauthorized distribution of music, at the expense of EMI's songwriters and artists.

Here, they're simply lying. The court ruling in the MP3Tunes case stated explicitly: "MP3tunes did not promote infringement." To claim otherwise is to ignore what the court stated flat out.

Now on the eve of trial, and after an ongoing press campaign claiming that MP3tunes would fight to vindicate its 'right' to infringe, Mr. Robertson has filed for bankruptcy protection for MP3tunes in the Southern District of California. After four and a half years of Robertson's bluster and rhetoric, it is apparent to EMI that Robertson has finally realized that his case has no merit.

While Robertson may believe that MP3tunes will be able to escape liability in the upcoming trial through this bankruptcy, Robertson himself is still a named defendant in the case and the Court has already determined that both he and MP3tunes have infringed EMI's copyrights. As such, he is facing personal liability both for infringements that the Court has already determined have occurred and for the further alleged infringements that will be addressed at trial. Accordingly, EMI will continue to pursue its case against Robertson, to ensure that its songwriters and artists are properly compensated for their creative work.

This makes no sense, and is even self-contradictory. As they state above -- and which everyone here knows -- filing for bankruptcy does not get you out of a copyright damages award. Thus, there is no reason whatsoever for the company to file for bankruptcy "to escape liability." That's impossible. The only reason to file for bankruptcy is because the company is out of money from fighting the damn lawsuit. And it's bizarre for EMI to claim that Robertson realized his case has no merit, considering that he mostly won the original lawsuit. Yes, there were a few key points that he lost on, which may turn out to be expensive if he loses on appeal and depending on the damages calculation, but the key elements of the case were won by Robertson and MP3Tunes.

It seems here that EMI is simply insulting Robertson out of spite. In the meantime, Robertson has pointed out that EMI spent $10 million suing him -- or more than the entire cost to build and run MP3Tunes. Remember that some exploration into how much EMI makes from Katy Perry's hugely successful album showed that the label probably ended up with about $8 million? Yeah, so basically it spent more suing Michael Robertson than it got from Katy Perry. Perhaps that money could have been better spent. No wonder the company was taken over by a bank and then sold off in pieces. Its priorities are a complete mess.

Filed Under: bankruptcy, competition, innovation, michael robertson
Companies: emi, mp3tunes

EMI Sneakily Trying To Pretend Many Of Its Artists Can't Reclaim Their Copyrights

from the but-of-course dept

We've talked plenty about the coming legal battles over "termination rights" in various works. If you're not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn't matter. Those rights cannot be taken away from the artist under the law. The exception to termination rights, however, is if a work is classified as a "work made for hire." However, the definition of what qualifies as a work made for hire is very, very narrow:

A “work made for hire” is--

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

There are a lot of specific conditions there. If you're wondering how such an odd list was put together, some have suggested it was basically just who was in the room. Somewhat surprisingly, one of the main parties who apparently wasn't in the room were the major record labels. Notice that sound recordings aren't there, and you'd have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one -- even the "authors" of the bill -- knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He's still at the RIAA where he's now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.

Of course, that hasn't stopped the efforts by the record labels to still pretend that the copyrights they hold are "works made for hire." They've been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is... 2013. So, a battle is shaping up.

Michael Robertson, who has been involved in a long term legal fight with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire. How are they doing this? Well, just by declaring that the songs are "made for hire" on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless. It doesn't mean the work hits any of the qualifications under the law.

The RIAA has been trying to claim that any albums are really a "compilation" so they qualify as a "collective work" under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it's unclear if those have been. Plus, the claim that an album is a "collective work" is a pretty weak one all around.

Either way, many artists probably don't even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he's dug up already -- including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:

What I'm looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)

Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that's a weaker case, since the band itself was put together by the label). Either way, it's pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.

Filed Under: artists, copyright, michael robertson, music, sound recordings, termination, termination rights
Companies: emi