By Andrew Goldberg
Amazon's push to beat Google and Apple to the punch in unveiling its new "music locker" service this week could cause the company to face a combination of new copyright challenges.
The e-commerce giant's new cloud-based music service known as Cloud Drive, which lets users store the songs they purchase on Amazon's servers and play them from almost anywhere, is certainly convenient. The problem is that it might not be entirely legal under copyright law, according to some people in the music industry.
At issue is whether a service that offers consumers access to music via the cloud must first acquire licenses from the music labels that control the copyrights on that music. Amazon says that it doesn't need a license. Company spokesperson Cat Griffin tells Ars Technica that "the functionality of saving MP3s to Cloud Drive is the same as if a customer were to save their music to an external hard drive or even iTunes."
Peter Kafka at All Things Digital points out that many people in the industry agree. Sony spokeswoman Liz Young, however, told Reuters that it's "keeping all our legal options open."
MP3Tunes CEO Michael Robertson, whose startup has been embroiled in a closely watched case after offering a similar "music locker" service, told Techcrunch that “Amazon’s entrance into the business is enormously significant because it will dictate whether Apple or Google enter into a license for their own service or go the unlicensed path. If the labels take no action against Amazon, then expect Apple and Google to follow in their footsteps."
The copyright issue presented is one of first impression for the courts, and the debate will remain unsettled at least until the EMI v. MP3tunes case is resolved. In that case, which is pending in the Southern District of New York, various record labels and music publishers sued MP3tunes, alleging--among other things--that MP3tunes is directly liable for copyright infringement for allowing users to publicly perform, reproduce, and distribute their copyrighted works. [Download EMIvMP3tunes Complaint.]
Specifically, plaintiffs argue that by allowing multiple users to stream songs from the same storage system, MP3tunes violates the labels’ exclusive right to publicly perform those works. In its motion for summary judgment, MP3tunes counters that argument by claiming that it actually maintains a separate copy of each song for every user that uploads it.
"What is retrieved from the system is the user's own unique copy--that is a copy of the music file that was created as a result of that user's direction to store the original file on the MP3tunes system," the company’s lawyers from Duane Morris wrote in their brief. "To our knowledge, no court has ever ruled that rudimentary software storage functionality constitutes copyright infringement..."
Indeed, the Second Circuit's ruling in the 2008 Cablevision case (Cartoon Network, LP v. CSC Holding, Inc.) offers hope to MP3tunes, and in turn to Amazon. There, the court ruled, much to the relief of couch potatoes everywhere, that a DVR system that allows cable viewers to record their favorite shows does not violate copyright law. The court reasoned that Cablevision was not violating the plaintiff's exclusive public performance right because it was only transmitting s single copy of show recorded by a single user, and was not transmitting that show publicly to multiple subscribers.
Provided that Amazon--by storing separate copies of every song purchased and uploaded to the locker--is providing a service similar to Cablevision’s, it should enjoy the same immunity from liability under copyright law. The music labels could take their chances and challenge Amazon in court, but they're not likely to prevail, according to former e-Music CEO David Pakman. Then again, copyright law is likely to remain murky in this area for quite some time.
They don't call it the cloud for nothing.