Original URL: http://www.theregister.co.uk/2011/08/23/mp3tunes_v_emi_music_locker_summary_judgments/

Cloud music-locker ruling: MP3tunes claims '99% victory'

The 1% leaves Robertson still on the hook, however

By Andrew Orlowski

Posted in Cloud, 23rd August 2011 11:43 GMT

The legal fight in US Courts between record labels and music-locker cloud services continues into a full-blown case – despite both sides claiming something favourable from court rulings yesterday.

A judge in New York District Court ruled that most of Michael Robertson's MP3tunes operation was covered by "safe harbor" provisions – but the free music grabbing portion of it wasn't. This narrows down the case considerably, but leaves the founder and his company on the hook for massive damages.

The judge partly granted and denied motions to both sides. The case was brought by EMI on behalf of other labels and music publishers.

Robertson launched the MP3tunes music locker six years ago, offering server storage of music and playback and downloading. So far, so good. He also launched sideload.com, which scours the internet for free music files from dodgy cyberlocker sites such as Rapidshare and File Factory, catalogs them, and allows playback. Sideload also encouraged users to copy them over to their MP3tunes locker. Robertson had no licence. When EMI complained about the Sideload files, Robertson removed those files from Sideload, but not MP3tunes.

With no licence, a lawsuit was inevitable. EMI went after the company, and also the founder personally.

Robertson said MP3tunes had acted responsibly, and if infringement had taken place, hadn't profited from it; EMI complained that MP3Tunes had failed to keep a list of repeat infringers, so couldn't make good on its promise to ban them. The judge agreed that tech companies have no "affirmative duty" to police their users and MP3tunes had done everything it needed to do to satisfy the DMCA's "safe harbor" provision. He also agreed that MP3tunes did not "promote infringement". Robertson describes it as a "99 per cent victory" for MP3tunes.

But the judge also ruled that Sideload.com was blatantly infringing, and that MP3tunes should have deleted sideloaded songs acquired from free music sites once it had received a notice from EMI, and should have also delisted dodgy websites. He rejected the defendant's argument that if it removed sideloaded music files, it would be liable for destroying "personal property".

Judge Pauley ruled: "EMI has not shown that MP3tunes executives sideloaded songs from clearly pirate websites. The same can be said for the websites used to populate Sideload.com. For instance, the websites rapidshare.com, fileden.com, and filefactory.com, as well as other sites used by MP3Tunes executives to sideload songs do not use the word “pirate” or 'bootleg' or other slang to indicate their illegal purpose and they are not otherwise clearly infringing."

Um. OK... Given the amount of noise the music industry has made about these sites, successfully enacting legislation to block access to them in the UK, whistling innocence isn't going to cut it.

In another pull-the-other-one statement, the judge opined that the words "file-sharing" and "free" are "ubiquitous among legitimate sites offering legitimate services". Are they really? (To our knowledge, there's only one legal, licensed file-sharing music service in the world – more's the pity – Soribada, in North Korea). Judge Pauley's views may make the ruling vulnerable to appeal.

The judge firmly rejected MP3tunes' argument that by distributing free copies of some of its songs on the internet as promos, it had "abandoned their copyrights altogether or authorized downloads outside of the promotional context. Indeed, one of your copying rights is to decide who gets what and how, and the decision to license a work under one set of conditions on Monday doesn't mean you can't change your mind on Tuesday. It certainly doesn't mean you've relinquished your copying rights, and some kind of quasi-blanket has been imposed on you. Of course you surrender these if you choose a permissive, CC-style license."

Overall, the judge reminded the court that Congress had written the Digital Millennium Copyright Act with the intention of promoting internet services, and duties and liabilities on service providers reflected that. He saw no ambiguity in the case of MP3Tunes, which was clearly operating within the scope of the DMCA. If you don't like that, he was telling EMI, then you'll need to change the statute.

After years of public indifference – Mp3tunes is hardly a brand that rolls off the tongue – internet giants are piling into cloud music. Amazon and Google have launched betas, and Apple's iCloud - which is licensed – offers the gimmick of ID'ing and matching your music and hosting it on Apple's servers.

Compared to real file-sharing, which gets people genuinely passionate and could be licensed in all sorts of interesting ways, it's all a bit of a yawn. ®