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Tuesday, November 30, 2010


The record companies, in this case EMI, are again after your rights.  This time your rights to store a file you own in a "cloud computing" system.

(They've found that suing sixteen year old girls is not the best for publicity - even if the law is on your side and you win.)

The question this time is a web site called  These folks offer you 2Gb of free online cloud storage for you MP3 files.  On the main page they list all sorts of devices and apps to listen to your music anywhere - iPhone apps, plug-ins for various MP3 players, and so forth.  The idea is that once the music is in your "cloud locker" you can play it from anywhere you might be as long as you can access the locker.

Of course there is the requirement that whom ever is using MP3Tunes actually owns the music.  (Though I did not try the service I have no doubt you are required to click a confirmation that says you may not upload music for which you do not own the copyright or rights to digitally duplicate.)

Under the DMCA (Digital Millennium Copyright Act) EMI notified MP3Tunes that it was infringing its music copyrights for some 350 songs.  This notification was supposed to be performed under the "take down" notice portion of DMCA.  MP3Tunes claims that it is a "service provider" under DMCA.  This means that its a service, like an internet ISP, and is itself just a "pass through" for things its users do.  In this case EMI found 350 songs and sent a notice asking MP3Tunes to remove them - which it did.

MP3Tunes subsequently filed a lawsuit claiming that 1) their business is a DMCA "service provider", 2) the notice provided by EMI did not conform to the DMCA format for take down notices, and 3) their service does not constitute direct, contributory, or inducement to perform copyright infringement.

Point #3 is very interesting.  The keys are contributory infringement and something called vicarious liability which, from this site, is defined as "vicarious liability requires two elements: (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity."

Contributory infringement (from the same site) is "(1) knowledge of the infringing activity; and (2) material contribution to the activity."

Now, given these definitions one must ask whether a Xerox machine or VCR or iPod would "contribute" to copyright infringement or allow "vicarious infringement" - they certainly meet the definition.  Ultimately the courts have found in Sony Corp. of Am. v. Universal City Studios, Inc that "The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. The question is thus whether the Betamax is capable of commercially significant noninfringing uses."

So the question becomes what is a service like MP3Tunes?  In the same link there is a length discussion of copyright law as it relates to Napster and other services like it.  In reading this description of the basic "music locker" concept I would have to agree that this concept does not infringe any copyrights.  Otherwise off-site backup systems like Carbonite would create infringement, i.e., backing your hard drive up to cloud storage would create infringement because you had made an illegal copy.

MP3Tunes also owns something called  Sideload allows MP3Tunes users to share links to music and, among other things, load the linked content into their cloud storage.

So where does all this lead? 

If we look at a court brief filed by the Electronic Freedom Foundation we can get to some of the main issues.

Basically the US Congress created the DMCA so that service providers would have a well-defined world in which to operate and would not have to worry about frivolous lawsuits and claims.  So long as a company follows the rules to act as a "safe harbor" site a company like EMI cannot sue it for infringement.

"Safe Harbor" means that if the company complies with these rules then regular copyright law does not apply.  In particular, the "take down" process allows a copyright holder to notify a "safe harbor" that infringing material is on its site.  The company must then immediately remove that material.  So long as this process is upheld there is no copyright infringement.

Ultimately all this, if not resolved, limits your rights to your own music or other digital content.

The bottom line to me is that these technologies offer users additional ways to manage music that might be stolen.  But its the user him or herself doing the stealing - not the "service provider".

EMI has found that suing kids for "sharing music" doesn't make them popular and they have withdrawn from this activity.  Unfortunately, companies like have now taken the place of the children as targets.

People have copied and shared music for decades on cassettes and tapes - no doubt cutting into the sales of EMI and others.  Its only now that the web, offering virtually unlimited sharing, has caused these companies a problem.  Don't get me wrong here.  I believe that copyrights must be upheld.  Unfortunately, its the "how" this must be done that's a problem here.

I hope that at some point a truce is reached on this and that well-defined and clear law is written so that this expensive nonsense is stopped.  This was tried with the DMCA and, though, not 100% successful so far, I think it will lead the way to resolve these issues going forward.

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