The Prior Art

Cloudy Copyright Forecast for New Amazon Music Service

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.

EFF's "Dancing Baby" lawsuit will proceed; can fair use be "self-evident?"

This afternoon, a San Jose federal judge cleared the way for the Electronic Frontier Foundation's YouTube "dancing baby" lawsuit, Lenz v. Universal, to move forward. The case has been underway for about a year, and defendant Universal Music has twice tried to have the case dismissed; today the company failed definitively. Lenz, represented by lawyers from EFF, will be allowed to prosecute the case.

It started like this: the plaintiff, Stephanie Lenz, posted a 29-second video of her son Holden (at right) dancing to the Prince song "Let's Go Crazy." Universal Music sent her a takedown notice; Lenz shot back an email complaining about the takedown; she contacted EFF; her video went back up; she sued anyway. EFF and Lenz are seeking a declaration that she does not infringe copyright, and most importantly, damages under section 512(f) of the Digital Millennium Copyright Act.

Reading the EFF lawsuit and press release it's easy to forget that EFF actually initiated the litigation. What damages exactly did Lenz suffer?

SF Chronicle on RIAA lawsuits: swing and a miss.

Today’s San Francisco Chronicle fronts the Business section with a piece on the RIAA lawsuits, focusing on a UC Santa Cruz student who has received one of the many thousands of pre-litigation letters sent out by the record companies.

In these dark days for the newspaper business, lots of editors are spending time figuring out how to capture the attention of younger readers. I can’t understand why they wouldn’t pay more attention to the RIAA litigations over music downloads. It’s an issue every young person in the country is at least aware of, and whatever side you come down on, it certainly strikes me as a novel and newsworthy story. But the newspapers haven’t covered it much, and it’s no wonder they’re having their lunch eaten by online coverage from sites like Wired's Threat Level blog and Ars Technica.

Not coincidentally, the coverage in those outlets is far more skeptical of the RIAA’s actions. The Chron’s writer, Verne Kopytoff, certainly lets the accused student have her say here, but the article is missing an important adjective (or two) in its broad description of peer-to-peer networks. Take this passage (emphasis mine):

The crackdown is part of a broader, yearslong effort by the association to curb online music sharing, a wildly popular practice that allows consumers to download music for free through online services Limewire, Ares and Gnutella. Called peer-to-peer, or P2P, networks, the services allow users to tap into and download songs from other users' collections. Adhering to copyright laws is left up to the users.

Music companies complain that file sharing, which violates copyright laws, is cutting into their profits, and they point to falling album sales as evidence.

All file sharing? Like, the Word documents I send to my editor? It would have been easy to specify that it was illegal file sharing that violates copyright laws. Legal uses of peer-to-peer technology are growing by the day. Consider Vuze, which uses the BitTorrent protocol to move high-definition video quickly and legally over the Internet, including TV programs from CBS-owned Showtime.

As a journalist, I appreciate the bind of having a very short amount of space to explain a complex idea. But this is just too vague; a little specificity--indeed, just one extra word--would have gone a long way. And of course "file sharing" is not synonymous with "music sharing," but, one thing at a time.

What should parents and students do about the dangers of file-sharing? The Chron’s tip box says, “Don’t share you (sic) computer with others."

That's a sad conclusion to reach. But maybe I'm biased. I confess to a long and complicated relationship with tip boxes and the editors who love them.

Having said all that, I give the Chron points credit for at least covering the story, which got over 100 comments despite the fact that it was buried deep in their Web site.

The most interesting fact was this: even though she has not yet been sued, an unnamed collection agency has already called her parents urging them to pay up. Urging someone to accept a particular settlement offer sounds more like legal advice than debt collection, and I wonder how that squares with the federal debt collection law. Allowing someone to try to collect a $3,000 "debt" and then asking for much more at a trial sounds like getting two bites at the apple.

Congress to Universities: Stop the downloads, or else.

Not long after I arrived at the Daily Journal in July, Sen. Harry Reid, D-Nevada, tried to attach an amendment to the higher education funding bill that would have created a top-25 list of the universities with the most illegal downloads. The amendment was quickly ditched under pressure from education lobbyists; opponents complained that this would be a “hit list” authored by entertainment industry trade groups like the MPAA and RIAA.

Now CNET reports that a Congressional committee is set to pass a 747-page bill this afternoon that’s quite a bit kinder to Hollywood, and it looks like it will pass over the universities' objections. Also blogged yesterday at NYT.

Under the bill now being debated, universities would have to make some moves towards tighter control over peer-to-peer networks. Schools would have to support initiatives to help reduce illegal downloading (p. 476), start working on an "alternative" system, and explore “technology-based deterrents.” (p. 412)

Speaking of technology-based deterrents, I reported a few weeks ago that U.S. District Judge Stephen Wilson is mulling over the installation of a copyright filter on the Morpheus software used by StreamCast Networks. (“Shifting the Digital Media Landscape,” Daily Journal 10/25/07) StreamCast is the last defendant in the MGM v. Grokster litigation; the others went out of business after losing at the Supreme Court. MGM Studios Inc. v. Grokster Ltd., 01-8541.

Andrew Bridges, the Winston & Strawn partner who was formerly a lawyer for StreamCast but has since moved on, compared Wilson’s order to the civil-rights busing cases—“The court has scheduled its intention to take over a business,” he said.

Perhaps what we're seeing today is similar copyright activism from another branch of government. In the upper house, Sen. Leahy has revived a bill beloved by the content industries, which would allow federal law enforcement to file civil lawsuits for copyright infringement.

With universities and FBI agents on your side, who needs IP lawyers?

Metaphor watch: 'Pirate' label survives Radiohead

As of last week, half a million users had downloaded Radiohead’s new album over the BitTorrent network, even though it was released as a “pay what you want” album that could be downloaded from the band's web site-- legitimately--for free.

I've noticed that some news outlets have continued to call unauthorized downloads of the new Radiohead album "stolen" or "pirated" even though the band clearly knew they were throwing at least some of their mp3's overboard, so to speak.

"Free? Steal it anyway," quipped Forbes, in a piece that exposed the "hard-core music pirates" who "chose to steal music they could legally download for any price."

Are these still the right terms to use? The copy editor within me (deep, deep within) wonders. Forbes seems to think there's no freebies allowed in capitalism. Like no crying in baseball.

Other news outlets pointed out that much of the "stealing" may have happened when Radiohead's web site was overwhelmed with traffic. It appears that other British musicians will follow Radiohead's lead, hard-core pirates notwithstanding.