This is a guest post by Angus MacDonald, General Counsel at Live365, Inc. regarding a recent court ruling that could have significant impact on the streaming audio industry.
Cloud-based music services can heave a sigh of relief. MP3tunes, the cloud locker service founded by Michael Robertson, scored a partial victory in the copyright litigation brought by EMI. In his August 22nd decision, Judge William H. Pauley III agreed with MP3tunes that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protected it against many of EMI’s infringement claims. The decision represents a significant victory for other cloud-based music services – such as Google, Amazon and Dropbox – who should have renewed confidence in operating their cloud services without a license. Though the decision sets a beneficial precedent for cloud-based music services generally, it is a mixed result for MP3tunes as the court also found both the company and Robertson liable for copyright infringement on some of EMI’s claims.
MP3tunes allows its users to store music files in personal online storage lockers and then to play those stored files from Internet-connected devices. MP3tunes also operates a second website, Sideload.com, that permits users to search for free song files on third-party websites and then “sideload” those songs, which would be saved to users’ lockers. EMI, along with fourteen record labels and music publishers, filed this lawsuit in November 2007, claiming a laundry list of violations of copyright and unfair competition laws.
Yesterday’s decision turned largely on whether MP3tunes is eligible for the DMCA’s “safe harbor” protection, which shields qualifying online service providers from copyright infringement for content uploaded (or “sideloaded”) by their users. To qualify, online services must follow the rules set forth in the DMCA, including expeditiously responding to takedown notices from copyright holders. The court found that MP3tunes – for the most part – complied with all of the DMCA rules and, therefore, was largely immunized from liability.
However, MP3tunes and Robertson did not completely avoid liability. Shortly before filing this lawsuit, EMI sent MP3tunes three takedown notices that identified specific song titles and URLs to be removed. Although MP3tunes disabled the links to those songs, thereby preventing more users from downloading them, it did not actually delete the songs from the lockers of its users who sideloaded the songs from those links. (MP3tunes claimed that it would be subject to lawsuits by its users if it removed property from users’ lockers.) The court held that MP3tunes did not do enough when it failed to remove the sideloaded songs from users’ lockers.
As for Robertson, the court ruled that Robertson was “directly liable for the songs he personally sideloaded from unauthorized sites.” This finding is somewhat confusing based on the court’s earlier statements that “there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on Sideload.com were unauthorized.”
There are several key-takeaways from this important decision. First, this decision provides significant legal cover for cloud-based music locker services to continue providing their storage and play-back services without obtaining a license. (When Amazon and Google launched their respective cloud services earlier this year, the record labels were “upset” and clamored that licenses were necessary.) While the decision does not specifically address the legality of MP3tunes’ music locker business model or other similar cloud-based services, it is clear that MP3tunes would have completely escaped copyright liability if it had removed the specific songs listed in EMI’s takedown notices from its users’ lockers.
Second, the ruling re-affirms the DMCA as a powerful shield against copyright holders, who claimed that the DMCA did not apply to MP3tunes. As the court observed, “the DMCA does not place the burden of investigation on the Internet service provider.”
Third, the decision appears to let MP3tunes off-the-hook for its storage process, which eliminated duplications of the exact same music files so that only one copy of a particular file would be stored on its servers and then streamed to its users. Google and Amazon took a different approach when they launched their respective services as both companies require every user to upload every song, regardless of whether other users had uploaded identical files, thereby resulting in an enormous consumption of bandwidth and storage space.
Finally, the ruling indicated that playing back songs stored in a user’s digital locker was not a “public performance” requiring a license, contrary to EMI’s contentions. This holding was a natural extension of an earlier decision – commonly referred to as the Cablevision case, which determined that a public performance license was not required for the play-back of television shows that were stored on a remote DVR at the direction of Cablevision’s subscribers.
The EMI v. MP3tunes case, however, is not over. While the decision disposes of some claims, several issues (such as damages) still will need to be tried – unless there is a settlement. The range of damages is $750 is $30,000 per work infringed, and can increase to $150,000 per infringed work if there is a finding of “willful” infringement. Because there are at least 350 works at issue, the damages could exceed $50 million dollars, though that result is highly unlikely. And, barring a settlement, one can certainly expect an appeal of this decision. But, in the meantime, the decision provides some important clarity and leverage for cloud-based storage services that may have been considering the daunting process of negotiating with labels (and other copyright holders) for the right to store and play-back their users’ lawfully-obtained digital files.
A copy of the decision is available here:
Your comments are welcome below. You can reach Angus MacDonald at firstname.lastname@example.org.
Michael Robertson thinks people should be able to listen to their digital music anywhere on any device. That’s exactly what MP3tunes sets out to do.
Robertson, the founder of MP3tunes, is a huge advocate of cloud based music services. He’s no stranger to the vengeance that record labels have when it comes to protecting digital song copyright law (as they define it.) In fact, he’s actually taken it on the chin before against the record companies – in the late 90’s he founded MP3.com, which he eventually sold to CNET after losing an expensive legal battle with Universal. His new service MP3tunes is currently involved in a lawsuit with EMI over copyright infringement issues.
“I think ownership is critical important in the digital age and worth fighting for.” said Robertson. “I think consumers should be able to choose where they want to use their digital property as they can with their physical property. I don’t want a corporation to be able revoke or limit access – as we’ve seen happening with Apple and Amazon.”
MP3tunes currently has over 500,000 registered users who upload their entire music collection to servers and access it from wherever they want. MP3tunes works on multiple smartphones platforms: Android, iPhone/iTouch, (iPad version waiting for approval) and many Internet radio devices (it’s compatible with devices that use vTuner and Reciva firmware.) This week they’ll introduce a deal with Roku that will enable access to music lockers on televisions.
Currently, the business model is a freemium model that offers listeners smaller sized lockers for free and charge a subscription fee for more storage space. But additional revenue sources like e-commerce and advertising may be in the cards as well.
Guvera, the on-demand service that recently launched here in the US, has gotten some early traction with big national advertisers who like the streaming services idea of building streaming channels of music around a brand.
According to a report last week, advertisers in the US include Victoria’s Secret, Microsoft, Sprint, Mastercard, Geico and H&M, all of whom have dedicated channels. Guvera Founder Claes Loberg explains that listeners are “brand loyal, taking the time to select a brand and interact with the individual channels to download their free music.” They are logging long periods of sponsor engagement double digit click through rates as well.
Guvera hails from Australia, started streaming in the US in March and is still working out licensing deals with some of the record companies. Their song library currently includes EMI Music Group’s labels; EMI, Virgin, Capitol Music, Bluenote, Mute and Domino. The website informs us that they’re hoping to add Universal Music Group, IODA and several independent labels in June and July. They are reporting 75,000 users across Australia and the US, with roughly 40,000 coming from Down Under. About 3-5,000 are joining weekly.
I like the approach this station is taking. They set out to distinguish their ad model from the beginning, emphasizing that they weren’t selling impressions but were focused on brand engagement by working with brands to create channel sponsorships. Apparently, some big brands think it sounds like a good idea as well.
Vevo, the music video site powered by Youtube launches today. The site will feature videos from three of the four major record labels – Sony, Universal and EMI. Warner Music Group is the only one not working with Vevo, although they are working with YouTube.
Professionally produced music videos are the most popular content viewed on YouTube. Now Vevo will offer music fans music video content, along with an online music store offering music downloads, merchandise created by artists, concert tickets and more. In the future a music video subscription service, offering both short videos as well as streamed concerts is likely to be added.
Vevo has announced a pre-launch partnership with CBS Interactive and will offer extensive music programming from the vaults of the CBS Interactive Music Group’s properties including Last.fm and more than 90 CBS RADIO music stations beginning next year. “Last.fm and CBS RADIO’s stations are producing a tremendous amount of unique video content every day – from long form concerts such as the “Live on Letterman” webcast series and annual special events, to acoustic performances and one on one interviews,” says David Goodman, President of CBS Interactive Music Group. “We’re excited to be part of the next generation of music video services, and look forward to all the benefits that go along with Vevo’s massive audience and reach including increased awareness of our efforts in this space to new revenue generating opportunities.”
The combination of high quality video along with lyrics and access to lots of information on favorite artists is expected to appeal to advertisers and command top dollars. The site will launch with partnerships with AT&T, McDonalds and Mastercard.
I like music site Grooveshark, and have written about it several times (here, and here). They’ve got a great service that allows you to listen to any song you want. They’ve been exploring some unique revenue models – for example, in addition to selling advertising, they have a service that allows musicians or independent labels to purchase a certain number of song plays to listeners who like their kind of music.
I spoke with Jack DeYoung, VP of Label Relations for Grooveshark, and Josh Bonnain, VP Marketing, when I wrote an article about Grooveshark in May. At the time, I asked them about licensing deals. I wondered how they were dealing with the major labels given their on-demand streaming service is precisely the kind of thing that the labels dislike. Jack explained that their license was an “experimental” license with the record companies which allow them to stream songs on demand and share revenue with the labels and artists based on how often a certain song or artist is played. Yep, experimental was what he said – I went back and checked my notes. What he failed to mention at the time was that it was only an experiment on the part of Grooveshark.
Well…it turns out that might have been wishful thinking because EMI has now sued Grooveshark. In fact, it turns out EMI had sued Grooveshark prior to my first blog post on May 21st. hmmm.
In any event, as Peter Kafka points out in his article on this topic, Grooveshark now joins the list of services that are being sued by the major labels, and their chances of survival are looking rather slim. The labels – including some of the independent ones – see on-demand services as a threat to music sales. Other on-demand services – Imeem, MySpace Music for example, pay hefty fees to the labels.
I’m not sure what was going on with Grooveshark – but their experiment doesn’t seem to be working out so well…