ArtsWatch: Music Locker Service Wins One, Loses One

U.S. District Court ruling applies digital copyright law to MP3tunes sideloading service
August 29, 2011 -- 6:47 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On Aug. 22 the Southern District of New York's U.S. District Court handed down a ruling on several motions for summary judgment in copyright infringement litigation brought by EMI Music Group against music locker service MP3tunes in 2007, including the defendant's music search website. With partial wins for both sides, the decision significantly advances the application of case law to music lockers and validates the efforts invested by MP3tunes and's founder Michael Robertson to ensure his latest effort qualified for Internet service provider safe harbor protections. However, the court did conclude that Robertson was liable for direct copyright infringement pertaining to unauthorized material that he "personally sideloaded from unauthorized sites." Although his service is protected by a safe harbor provision of the Digital Millennium Copyright Act for having taken down links to infringing material that EMI identified and for having closed the accounts of 153 repeat infringers, the court held MP3tunes liable for having failed to take the extra step of removing identified works from the music lockers to which they were sideloaded. Because the service knew these works were infringing and controlled users' access to them and did not block such access, MP3tunes was found guilty of contributory infringement for the identified works. On the other hand, EMI failed in its claims that the service should have removed all of the label's infringed works that were not identified and that MP3tunes should have launched investigations based on the red flag provided by the listed instances of infringement. The court also rejected the labels' claims that a deduplicating system used to avoid storing multiple copies of similar files entailed using a master recording that would require a license. Disputes that remain unresolved include MP3tunes' use of album artwork licensed from Amazon and EMI's allegations of unfair competition. Consumer advocates Electronic Frontier Foundation and Public Knowledge had filed a friends-of-the-court brief together on behalf of MP3tunes and were pleased that the ruling provided a constructive way forward for cloud music services.

The Congressional Budget Office released its cost estimate for S. 968, the PROTECT IP Act, on Aug. 16. Based on information submitted by the Department of Justice, CBO calculated a $47 million cost over five years that would cover hiring 22 new special agents and 26 support staff. The MPAA blog observed that PROTECT IP does not require this money to be spent, however additional law enforcement resources are certainly welcome and could produce a healthy economic dividend for the government at tax time. The Recording Academy supports S. 968, which is currently pending a vote by the full Senate.

On Aug. 23 U.S. Immigration and Customs Enforcement arrested the operator of two of the sports-oriented websites that ICE had seized in February as part of Operation In Our Sites. The operator, Mohamed Ali, had been providing links to commercial boxing, wrestling and Ultimate Fighting Championship videos for subscription fees of $6, $12 and $25, and made approximately $6,000 in profits. Since his domains were seized they have received more than 50,000 hits, although they now direct visitors to an antipiracy message.

An effort to quantify the piracy impact of Fox's Aug. 15 decision to not promptly put all its shows online found that available BitTorrent copies of "Hell's Kitchen" increased 114 percent and copies of "MasterChef" surged 189 percent. Fox had imposed an eight-day delay on what non-paying visitors to Hulu could watch.

The RIAA recently filed an appeal for its lawsuit against Jammie Thomas-Rasset in St. Louis' U.S. Court of Appeals, asking for a determination whether the U.S. District Court was in error when it made several determinations, including the judge's reduction of damages from $1.5 million to $54,000. In other words, if the RIAA's appeal succeeds then the first-ever consumer copyright infringement lawsuit will go to trial for a third time.

It hasn't been an easy month for mass-litigation law firm Righthaven given its recent pursuit of at least 78 current copyright infringement claims against writers and bloggers who have reproduced newspaper copy owned by Nevada publisher Stephens Media or Colorado publisher MediaNews Group. August began with the firm not paying a $5,000 court-ordered fine on time and with the Electronic Frontier Foundation trying to shut down the firm's lawsuits in Colorado. On Aug. 15 a Nevada judge ordered Righthaven to pay a defendant's $34,045 legal bill. In an interview the next day, Righthaven CEO Steve Gibson was confident the setbacks his litigation strategies have encountered were part of a bigger positive picture.


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