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.
Americans are now streaming as much music as they are downloading, according to NPD Group. According to an article in Evolver.fm and reported by RAIN the other day, 29 percent of Americans streamed music in August and 29-30% downloaded music online.
That’s what’s called a tipping point – one that we’ve reached by witnessing the rapid growth of streaming music and the decline of downloading the same. Streaming music is about to become the dominant computer music listening behavior, according to Evolver, probably in a few months. And that doesn’t factor in the online listening/streaming that is occurring on mobile devices and televisions.
So what’s driving this rapid acceleration of streaming and deceleration of downloading? Well, Pandora‘s wild popularity is, for one. The service’s easy to use and easy to like format has introduced millions of listeners to streaming radio – at last count they claimed 60 million registered users.
Another factor driving the strong uptrend in streaming music is the variety of available services. On demand services like Rhapsody and MOG allow listeners to select any song in their library, build playlists and even store and transfer playlists to playback devices, while others like Pandora offer streams that use predictive playlist technology to personalize each listening experience based on preferences. Cloud services like MP3Tunes enable listeners to store their personal music collection on a server and stream it from whatever device they prefer. Add all of that to an enormous selection of AM/FM and online stations offering a more traditionally programmed selection of music with far fewer commercials and you have a pretty enticing list of streaming music options.
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.
Digital music buzz is all about cloud based streaming services these days. Apple bought Lala and Microsoft launched a new “entertainment vertical” for Bing that ties in full song streaming from Zune. Two weeks ago HP acquired Melodeo. And Google is supposedly readying a mobile music platform that will launch with Android 3 and include anywhere access, paid downloads and subscription aspects. The big tech companies seem to be scrambling to gain position in the cloud based streaming music space.
Meanwhile Forrester has released a report that finds that cloud based streaming on mobile devices is still more buzz than reality. The new study “360 Music Experiences: Use the Cloud to Target Device Use Orbits” focuses on the impact that cloud based services have on the devices consumers choose to listen on. 41.6% of Adults 18+ are still tied to their pc as their primary source of digital music. MP3 players ranked second at 32.5%, music-enabled phones at 12.1% and home streaming devices at 11.1%. Mobile access to music services through smartphone apps, while certainly an area of great activity, has yet to have a substantial impact.
Keep in mind that these findings are based on 3Q 2009 data, and many (but not all) cloud based services are either still in the works or have launched since then. But the report expects listeners to stick with a device of choice for cloud based streaming even with the option to listen anywhere on any connected device.
In addition to the question of what device listeners choose to listen with, there’s the issue of how the space will monetize. MOG, Rhapsody, Rdio, and others are betting on a subscription model that enables listeners to pay a monthly fee for on demand streaming. MSpot and MP3tunes offer storage space or “music lockers” for your personal music collection – free for small amounts of storage, monthly fees for larger amounts. Google will likely pursue an ad based strategy in keeping with its other platforms, while Apple may create a hybrid that expands on its iTunes (pay for downloads) brand, and incorporates its new mobile ad platform iAds.