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Clock ticks on MP3tunes.com case

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"How is that any different?" Robertson says, comparing Gmail, Hotmail, and Skydrive to the Amazon, Google and MP3tunes.com music lockers. "People are surprised when I tell them there's nothing in the law that says you can store files online as long as they're not music. There's noting in the law that says you can stream but you can't download."

A victory for Robertson, however, would not mean unfettered online music. It would protect MP3tunes.com, CloudDrive, and Music Beta as they are, but their owners will still rely on the labels for access to their catalogues if they want to expand the basic locker.

A music locker would be nicer if you didn't have to actually upload your the files on your machine. Music lockers – per se – are not very interesting. They're kind of like music museums. It's the services you build around them that are the future – like integrating with your online music purchases, building play lists, sharing, and merging features like web radio or Robertson's new venture: DAR.fm, a Tivo for radio to find, record, and playback web radio.

You will see new licensing because the record labels will say: "We have to do something here. We have a lot less leverage".

DAR.fm uses an open API that developers have already used to build players that bring the service to iPhone and iPad, Android, Windows Phone 7, webOS, Playstation, Wii, and video and music players from Roku, Lotitech, Squeezebox, Grace and AR Infinite.

Clearly, today's lockers are hoping that building a critical mass of customers who've uploaded their tunes would convince labels to play ball by offering more acceptable licensing terms. "Is it more cumbersome if the user has to upload all their songs? Yeah it is," Robertson says. "But I get to operate in every country, I don't have to agree to per use fees, song fees, report every single track, I don't have to have your advertising in our system."

If he wins, Roberson continues, you will see new licensing because the record labels will say: "We have to do something here. We have a lot less leverage". They will drop demands such as you can never download once your music is synched to the cloud, or you can us it in the US but not Canada, or you can't use it with more than one device, he says.

Licensing is important because it means access to the labels' catalogs – the real prize. If Apple does go ahead and launch a licensed service then it will be a step closer offering something that goes beyond the basic locker, which is likely to appeal to consumers and has an edge over Amazon, Google and MP3tunes.com.

A license agreement with the labels for Apple would mean it can potentially offer what's known as "scan and match" to its locker. Under this service, the locker would buy the rights to stream a catalog of music, and then scan your computer to see which of those songs are present. The service would then assign you the right to stream those songs in the catalog that you already have and play them on different devices. Meanwhile, Apple could also combine the iTunes store with the locker.

Private music versus public video

Robertson was the first to go up against the labels with an unlicensed service. Four years after EMI shot back, we're waiting to see if the labels will target Amazon and Google with the same legal argument.

The MP3tunes.com case is not a jury trial. It's a case where arguments are presented to a judge who then delivers a summary judgment, and this will likely happen before August. The loser then has the right to appeal.

Robertson feels that with the DMCA and the precedent of services like Gmail, Hotmail, and SkyDrive where users are already uploading and storing their content, EMI will lose and that EMI and fellow labels will be forced to do business.

"If you are storing material at the direction of the user then you have copyright immunity – that's how YouTube won [against Viacom, who is appealing the earlier verdict]. If YouTube won storing videos that a revealed to anyone then storing music that's only available to the person who uploaded it is less of a legal question than YouTube's model," he says.

"They are going to lose," he repeats. "It's a question of when will they get reasonable in their licensing terms, and we we'll have to see." ®

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