August 23, 2011 | By Julie Samuels

MP3tunes: A Victory for Music Lockers Is Good News for Music Fans

We've watched this year as Amazon, Google, and Apple have raced to roll out cloud-based music locker services. Each of these company's services signals something in common: an apparent fear of liability for de-duplicating files uploaded by their customers. (De-duplicating means that the service does not store multiple identical files on its servers, even if more than one customer individually uploads the same file.) This can be a huge waste of storage, to little purpose other than pacifying copyright owners more concerned over form than substance. Because of this, Amazon and Google store a distinct and separate file for every single file that is uploaded to their services, and Apple reportedly paid $150 million in licensing fees for, among other things, the ability to avoid this practice.

But it appears that all of this worry and extra work may have been in vain. Just yesterday, a court found that an early music locker service, MP3tunes, which uses a de-duplicating process, “is precisely the type of system routinely protected by the DMCA safe harbor(s).” This outcome represents an understanding of copyright law more in line with how technology actually works, and avoids an absurd result where a music locker needs to waste server space by storing thousands of copies of identical files. This means more efficient music locker services, which is good news for music fans and for companies coming up with new and better ways to give those fans access to music they already own.

The opinion in the Capitol Records vs. MP3tunes case contained other good news (EFF filed an amicus brief in this case earlier this year). For example, the court made clear that the music locker service—whether it de-dupes or not—is like any online service provider (OSP) and, therefore, is entitled to the DMCA safe harbor protections as long as it complies with other DMCA requirements.

One of those requirements is that the OSP maintain a repeat infringer policy. We’ve written before about this somewhat vague provision of the DMCA, and we were happy to see the MP3tunes court reaffirm what we already knew: that an OSP is only required to do “what it can reasonably be asked to do” and it has “no affirmative duty to police [its] users.” The court went even further, implying that a repeat infringer policy need only target “blatant infringers”:

There is a difference between users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal user, do not know for certain whether the material they are downloading violates the copyrights of others.

Other highlights from the opinion include: 1) a statement reaffirming that a notice under the DMCA must specifically list each work allegedly infringed and a representative list will not require an OSP to remove other works owned by the notifying party (“the DMCA does not place the burden of investigation on the internet service provider”); 2) a footnote saying that the DMCA applies to state copyright laws, meaning that it applies to sound recordings from before 1972 as well as after; and 3) language showing that services like MP3tunes, which do not directly benefit from infringement, deserve the same protections as popular search engines:

If enabling a party to download infringing material was sufficient to create liability, then even search engines like Google or Yahoo! would be without DMCA protection. In that case, the DMCA’s purpose—innovation and growth of internet services—would be undermined.

The news was not all good for MP3tunes, however. The court found that MP3tunes, upon receiving a valid takedown notice, has an obligation to remove the infringing materials not just from sideload.com (MP3tune's search engine populated with links to music), but from its customers' personal music lockers. The court also found MP3tunes liable for contributory infringement for failing to remove works from those personal lockers and held its founder, Michael Robertson, personally liable for infringement for certain files he downloaded. This is likely to amount to millions of dollars in damages for both Robertson personally and his company.

Overall, we were glad to see the Court get it right that music locker services fall safely within the DMCA’s safe harbors, which Congress designed to foster innovation on the Internet. MP3tunes and all the music locker services that have followed it give music fans more options for storing and listening to the music they already own, helping realize the promise of that innovation.


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