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Saturday, November 27, 2010

Wam! Bam! Thank you ma'am!

Michael Robertson, the CEO who brought us MP3.com at the turn of the 21st century, is back again with two services: MP3Tunes and Sideload. MP3.com ostensibly allowed users to listen to CDs stored on MP3.com servers if they could establish to MP3.com's satisfaction that they owned the original CD. MP3.com lost a fight in the Southern District of New York, with the court concluding that MP3.com was not engaging in (arguably) protectable "space shifting" by storing subscribers' CDs, but instead "re-playing for the subscribers converted versions of the recordings it copied, without authorization." Judge Rakoff concluded that this was not fair use, and the legal fallout led to MP3.com's merger with Verizon.

Robertson's new storage service, MP3Tunes, allows customers to store audio files "in the cloud," not unlike Dropbox or other cloud storage services. Digital files uploaded to an MP3Tunes locker can be replayed by the locker owner in a variety of ways. Viewed in isolation, MP3Tunes simply stores subscribers' CDs. The recent decision in Cartoon Network v. Cablevision would suggest that the Second Circuit, at least, is sympathetic to the notion that where a business provides a service and consumers push the buttons that copy protected expression, the service providers are not directly liable. Thus, if online storage by consumers is protectable private use (a possibility the court in MP3.com acknowledged), MP3Tunes is unobjectionable as a service enabling that storage.

Sideload is an associated service that changes the way MP3Tunes works. The Sideload program lists the material available in the lockers of other users of MP3Tunes and allows you to stream those songs and download them into your own locker.  In other words, if I load David Bowie's* "Suffragette City" into my MP3Tunes locker, Sideload will help you find it, and you can make a copy from my copy. As I understand the services, other people can then make a copy of your copy of Suffragette City. If one accepts as a baseline that consumers are taking their personal stock of legally purchased CDs and MP3s, loading digital files into MP3Tunes lockers, and other consumers are locating those files and copying them through Sideload for free, then the service sounds suspiciously like Napster-esque "file sharing," and unlike arguably protectable "space shifting." Robertson makes an interesting factual claim in its motion for summary judgment that, if true, might alter the way we think about this particular case, even if Sideload is part of the package.

Robertson asserts that record lables like EMI distribute music files for free on the internet with the intent (in the words of EMI's Senior VP for Digital Marketing) that the songs should become "viral...giving fans the ability to disseminate to other fans, to spread like a virus." Not every song is marketed as a free (and hopefully viral) release, but many are. EMI and the other labels want to hold MP3Tunes accountable for distinguishing between them. MP3Tunes instead hopes to rely on Section 512(c) of the DMCA, which immunizes online service providers that store material online at the direction of users, so long as the service provider takes down unauthorized content once it is brought to the attention of the service provider by the copyright holder. MP3Tunes argues (reasonably, I think) that if EMI has flooded the market with free content, EMI is the party best positioned to distinguish between viral content and content that wasn't supposed to get out for free. Thus, if MP3Tunes timely removes any content flagged by record labels, then EMI should be able to get what it wants by flagging "traditional" content for removal, allowing MP3Tunes to remove flagged content while enabling the distribution of free content. Thus, even assuming that Sideload lets other MP3Tunes customers copy "Suffragette City" from my locker, the question we should ask is whether EMI authorized its viral release.

I am a skeptical of Robertson's factual claims, because it seems that many artists have use free streaming content "distributed" through social networking systems like Facebook or Twitter, and less on the distribution of actual copies.  Still, to the extent the claim is accurate, it seems entirely within reason for Robertson to offer a service that allows consumers to find and share authorized "viral" downloads.

* Bowie is an EMI artist, whose seminal album, The Rise and Fall of Ziggy Stardust and the Spiders from Mars, was just released in the UK on a commemorative stamp.

Posted by Jake Linford on November 27, 2010 at 02:26 PM in Culture, Information and Technology, Intellectual Property, Music, Web/Tech | Permalink

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Comments

What's interesting about Robertson is that he's founded four companies (to my knowledge). Out of those four, three have had legal issues. You've already mentioned MP3.com and MP3Tunes, but Lindows, his third company, essentially attempted to create a Linux distribution that was compatible with Windows. After a dispute, Lindows ended up settling with Microsoft and gave up its trademark (now renamed to Linspire). Robertson also sued for embezzlement; it later was discovered no such embezzlement occurred. Linspire, by the way, is a crappy operating system that, at this point, is basically Debian with a half-baked package manager and some pre-installed proprietary software.

The fourth company, ajax13, launched to lots of fanfare. It was supposed to be somewhat like Google Docs (basically, an online office suite). It sucked when it came out, and it's now in the deadpool. ( http://www.crunchbase.com/company/ajax13 )

There's a lot more stuff on Robertson at http://freespire.com/ .

Posted by: Annonymous | Nov 27, 2010 10:44:08 PM

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