Will record labels control digital-music lockers?
A fitting anthem for Michael Robertson these days would be The Rolling Stones' hit, Get Off of My Cloud.
For nearly a decade, Robertson, the often controversial cofounder of MP3.com and Linspire, has toiled to store music in the cloud, the term used to describe the seemingly limitless amount of data and services accessible with a Web browser. But in the past, Robertson's efforts have led him into epic legal battles with the music industry. That's where he finds himself once again. In November, EMI filed a copyright suit against him and his music service, MP3tunes.com.
Michael Robertson says corporations can't dictate what music buyers do with their legally purchased songs.
(Credit: Michael Robertson)More recently, Robertson has had to watch competitors generate headlines with an idea he helped pioneer. On Monday, Lala.com launched a service that enables customers to upload songs into digital music lockers (or the cloud) and then stream the tracks to Web-connected devices. Before launching, Lala obtained licenses from each of the top four recording companies. The differences between MP3tunes and Lala are many but chief among them is this: Robertson doesn't believe services such as his are obligated to obtain licenses to help consumers store legally owned music.
There's potentially a lot at stake here--that is if you believe all our gadgets will one day connect to the Web, and that people will access music from celestial jukeboxes via whatever device is handiest. How Robertson's legal case is decided could help determine who owns the keys to digital lockers.
EMI says issue is piracy
Little in EMI's complaint indicates that the label objects to the storing of music in lockers, digital or otherwise. As a matter of fact, the document reads like a run-of-the-mill piracy complaint.
EMI, the smallest of the top labels, alleges that Robertson has set up his two operations, MP3tunes.com and Sideload.com, to deliver a one-two punch against copyright. According to EMI's complaint, Sideload finds and organizes links to pilfered music files on the Web. MP3tunes then enables those pirated files to be stored, copied, and downloaded to devices without paying a dime to the music creators.
"Next to each Sideload song is a small "SL" icon," EMI wrote in its complaint filed in U.S. District Court in New York. "When users click that SL icon, MP3tunes makes a full permanent copy of the desired work and stores it in a locker assigned to that user at MP3tunes.com."
The record label accuses MP3tunes of then handing users the ability to share access to their music lockers with anybody. According to EMI, MP3tunes only requires customers to submit an e-mail and password to access their music. EMI lawyers argued that such lax security enables a locker to become a "virtual drop box for this illegal distribution."
Robertson dismisses EMI's claims and said Sideload is nothing but a search engine just like Google and Yahoo. The Digital Millennium Copyright Act protects service providers from responsibility for any crimes committed by users, Robertson said. He claims EMI's lawsuit is designed to camouflage the record industry's true goal, which is to prevent him and anyone else from storing music in digital lockers without first paying licensing fees.
"This is about what users are allowed to do with their music," Robertson said. "Are they allowed to put it on their phone and their game devices or on multiple PCs without paying the labels each time? I say they are. Consumers don't want a corporation deciding for them what they can do with their property."
To help prove that MP3tunes violates copyright law, EMI is focusing its legal attack on the way MP3tunes stores music, Robertson said. Before I get to that, there are some things about Robertson readers should know.
Is MP3tunes different than MP3.com?
First, this is certainly not his first court fight. He was one of the cofounders of MP3.com, which attracted a huge following in the late 1990s partly by doing what MP3tunes.com does now. MP3.com's Beam-It program enabled users to load CDs into online lockers and access the songs from Web-enabled devices. The problem was 10 years ago many people were still limited by 56k connections.
It just wasn't feasible to upload music this way, Robertson said. In order to speed up the process, MP3.com purchased $1 million worth of CDs and created software to scan a user's hard drive. The software detected whether a user owned copies of songs found in MP3.com's library. If they did, the service gave the user access to its copies.
The labels zeroed in on this. Universal Music Group alleged in a copyright suit that MP3.com was unauthorized to use its songs as a data base. In a landmark decision, the judge agreed and MP3.com eventually paid UMG more than $53 million. Then the company, which had raised $370 million in a 1999 public offering, merged with Vivendi. Later, its domain name was sold to CNET, publisher of News.com.
"The court found that MP3.com had engaged in willful acts of copyright infringement," EMI wrote in its latest lawsuit, adding that Robertson ultimately started MP3tunes.com as a "vehicle to achieve a comparable infringing purpose."
Again, Robertson shrugs off EMI's charges. He said his company is clean. Technology has improved and he doesn't have to create a central music library. Users can create one for him by uploading their own songs. But wait. Is it legal to manage a central music library without permission from the copyright owners regardless of who stocked the library with songs?
Unauthorized performances
Let's step back for a second. It's incorrect to think of digital music lockers in the same way one thinks of a high school locker, says Robertson. Music uploaded into the site isn't tucked neatly into some walled-off area. Songs from every customer are loaded onto the same hard drive, he said. But it's important to note much of of the music is never actually stored, Robertson acknowledged. It would be inefficient and expensive to store numerous copies of, say, The Beatles' classic "Yesterday" or AC/DC's "Back in Black."
MP3tunes keeps a copy of a particular song and distributes that one to customers over and over again. This means, however, that the files users load onto the site are unlikely to be the same ones they hear when accessing their music. Every company handling digital information operates the exact same way, Robertson argues. Nonetheless, EMI claims that MP3tunes is not authorized to distribute music this way and is violating copyright law.
"If EMI is right, their argument indicts every single online storage service and ISP in the world," Robertson said. "We didn't invent this technology. That's a default feature in every single storage system."
Robertson has a point. How much sense does it make to store 10,000 copies of the 10,000 most popular songs? If the copies are exact, what's the difference whether I'm listening to my bits or someone else's as long as I legally purchased the music? Don't I own the right to hear the song?
EMI's attorneys will almost certainly argue that a user purchases a set of bits and they only own the right to those bits.
The label is also likely to compare MP3tunes to MP3.com and claim that in both cases Robertson operates a music data base without permission from the copyright owners. The only difference is that MP3tunes didn't actually make any of the copies on the site.
It will be interesting to see whether that's enough of a distinction to satisfy the courts, especially when Robertson has acknowledged customers of MP3tunes, like those of MP3.com, aren't listening to their own music files.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
If music cd's would host RAW music files and mp3 files on the same cd and each tune would be marked to show they came directly from the CD then the consumer should have full access rights to the music they legally own on all their music playing devices. To think the music industry would play the part of the middle man and prevent me from listening to music I purchased or to have them pop up a window stating that if I want to listen to my own music stream from my own internet account cloud space I must purchase an aditional license to listen to streams? I call that double dipping and should be illegal.
They're stupid.
And they're suing me for "copyright infringement" right now.
Besides, EMI is the only label that sells their catalog DRM-free to digital distributors. *shrug*.
I am for consumer rights and you should be allowed to reasonably backup all of your music. The question is where do you define what is "your music" and how do you prevent someone from just borrowing every CD they can get their hands on and uploading it to "the cloud?"
I have known Michael for going on 11 years now. He was one of our biggest customers and a good friend. We webcasted the launch of his original MP3.com music locker. THe day of the webcast they were handing out little cannonballs with fuses on them and the words "The MP3 BOMB" on the side.
And Bomb it did to the tune of $350M.
Michael loves to stir the pot but let's face it, all press fanboyism aside, all of his music ventures have been less than successful. This idea is still marginally legal if it all and while I respect and appreciate where he is coming from, I just don't see this going far.
I believe you are thinking about Software, which does come as a license in essence. But that is a whole 'nother kettle of fish.
You own the CD, you own the case, but you don't own the music. The copyright owner owns it. You only own a license to that music.
You can sell the CD, and therefore the license, but if you have made copies of that music and sell the CD, you are legally obligated to destroy those copies.
You are purchasing a license when you buy music with DRM and that license grants you access to the performance.
But never mind that that's applying reason to a copyright case and if anything we know that the United States can't apply logic to copyright.
If anything the prices will go UP because the labels will have increased costs of managing the supply chain.
and extracting money from your back ups . Mob like actions
I wish people would think about what if anything the Music Industry could do to evolve with the internet. Because people seems to have no respect for copyrights, what else is there to do, but to lock it down and restrict its use. Grant It has only serve to hurt people like me, who respect copyrights, but for me it is better than seeing content become cheap.
Cheap content would hurt all of us. We would no longer have access to quality content if people who could produce it are not rewarded for doing so. So, I say just put with DRM and better yet stop downloading and looking for illegal copies of music. You don't shoplift groceries stories, or take steal cars out of a dealerships. Why download music you didn't pay for?
If I bought my vinyl copy of Sgt. Pepper's in 1968, can Capitol Records say with a straight face that the license I purchased then involved Internet sharing?
And of course, I didn't buy it from Capitol Records: I bought it from Master's Department Store (long defunct--as is Capitol Records). I paid cash. I didn't sign any sort of agreement--or anything at all.
Can a record company unilaterally change an agreement I may or may not have entered into in 1968?
Can they even say I signed an agreement when I was a minor?
If the licensing agreement is a reality, then minors would not be allowed to purchase CDs. And then wherre would the Jonas Brothers be?
But the license argument is not the basis. The law says that the buyer of the music does own their copy of the music, and is legally entitled to make back-up copies. CD's like books or records, can be resold --and eventually (despite corporate efforts) they become public domain.
The legal principle of not copying for profit is well established, but not so much elsewhere.
People have said, and loudly, "sharing music is stealing!"--but is playing a CD for friends stealing? Is playing it loud so that everybody on your block can hear AC/DC stealing, even though it will forever cut into AC/DC sales? It isn't because the law says it isn't..
Record companies have asserted rights that they don't have--. They aren't right if the law says they aren't right.
How do you figure that we have licensed the music from the copyright holder? In most cases, we're not even buying anything from the copyright owner, but from the record companies who are usually neither the writer nor publisher of the copyrighted work. Nowhere on the cd is this license agreement shown. How can I be part of an agreement that is unstated? You mean to tell me that little copyright symbol represents this agreement?
But I agree, it's a matter of defining what you bought when you purchased the cd.
Or do I have to buy it again?
Unfortunately, they are too late ... so it is now time for their new business model ... sue, sue and sue ...
- by Start_My_Song October 23, 2008 8:05 AM PDT
- This is all such a mess. I think the labels and everyone else should just except the fact that all music will one day have to be free because its digital and can be copied and transferred so easily. That doesn't mean the internet is bad and artists can't make money for their work, there are other revenue models. The internet is the artists biggest tool now, not their biggest enemy.
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- by Lerianis October 25, 2008 8:53 AM PDT
- That is the truth. It is simply time to realize that the 'music industry' as we know it today is going 'bye-bye' at the speed of light. It is collapsing, and it's simply time to let it collapse. If people want to make money off their music..... do concerts! Sell the music online, in your own DRM-free stores! Sell CD's at the concerts, with the best quality music, higher than CD quality. Etc. etc. etc.
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(20 Comments)See The Last Days of the Labels: http://www.startmysong.com/blog