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Capitol Records Flooded Internet With MP3s, Says MP3Tunes CEO
Posted by
timothy
on Wed Dec 31, 2008 06:29 PM
from the how-much-carrot-how-much-stick dept.
from the how-much-carrot-how-much-stick dept.
NewYorkCountryLawyer writes "In court papers filed in New York in Capitol Records v. MP3Tunes, the CEO of MP3Tunes, Michael Robertson, has accused the plaintiffs EMI, Capitol Records, and other EMI record labels of flooding the internet with free MP3s of their songs for promotional purposes, 'free to everyone (except, apparently, MP3tunes).' His 10-page declaration (PDF) provides exact details of specific song files, including the URLs from which they are being distributed free of charge, both by paid content distributors, and by EMI itself from its own web sites."
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What am I missing here??? (Score:5, Insightful)
Aren't the songs EMI / Capitol's to do with as they wish?
Including give them away, by whatever methods they choose?
Obviously, I'm missing a legal facet here; what is it?
Re:What am I missing here??? (Score:5, Informative)
Nope, you've got it right.
If Capitol Records holds the Copyright, then they can do whatever they want and still control the distribution channel.
Parent
Compared to other heavyweights.. (Score:5, Interesting)
I think this stuff is standard practice for a big organization in a powerful position. Yesterday I tried buying coffee beans from a small (2 location) coffee shop located in a mall. Apparently Starbucks had leased a spot elsewhere in the mall and negotiated a clause into their contract with the mall. The small shop could sell Starbucks beans or make coffee with their own beans, but was forbidden from selling their own beans.
I'm not sure why that situation doesn't qualify as anti-competitive, but controlling distribution options is a basic part of some businesses' plans.
Parent
Re:Compared to other heavyweights.. (Score:4, Interesting)
I once came across something similar where a small restaurant couldn't even sell brewed coffee because of a Starbucks in the shopping center! Likewise, Starbucks had a contract with the landlord...
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Re:Compared to other heavyweights.. (Score:5, Insightful)
The small guys do this too, to be honest. In my town, we have two small mom and pop coffee shops that are open for a few hours a day in the morning. They are not open when I'm looking for entertainment, and they don't provide internet (which if they did, I might go there earlier). In the biggest intersection in town, the corners consist of two gas stations, a park, and an empty lot (which is quite an eye-sore). Starbucks wanted to open there, but the small coffee shops lobbied to prevent the township from allowing the permits to build.
While generally, I would prefer having local businesses as opposed to mega-corporations like Starbucks, I cannot support local businesses that simply refuse to complete.
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Re:First Sale Doctrine, maybe? (Score:5, Informative)
There was a lawsuit about this and the eBay seller who was selling promotional CDs won the right to continue selling them.
Parent
Re:First Sale Doctrine, maybe? (Score:5, Interesting)
and yet every label knows that 99% of the promo CDs they send out will just end up in the used bin at local record shops.
we try our best to mark promo CDs as such. record companies used to punch holes in the album covers of their LPs meant for promotion use or print "white label" records to distinguish them from the retail product. these days we just use sharpies to write "PROMO" on the covers, but it really is a futile effort. if you go to any mid-sized record store with a used/second-hand section, you'll still find tons of promo materials being sold.
occasionally we'll come upon our own promo CDs being sold at a record store, and in those situations we'll ask the owner to take them off the shelves or just buy them back. but as far as i know, it's not actually illegal to sell promo CDs.
and regarding the relevance of Capitol Records distributing free mp3s to this case, i think it has to do with the plaintiff's claim that MP3Tunes has "severely and irreparably [injured] Plaintiffs and other copyright holders by eroding legitimate sales of music through both traditional and online channels." i think those claims are dubious at best to begin with. but if Capitol Records is already distributing their own music all over the web where anyone is free to download it, then they can't really claim that MP3Tunes is eroding their sales simply by allowing their users to access their own uploaded music from any computer with an internet connection.
i mean, they might as well sue wireless router or S/PDIF cable manufacturers for illegally distributing copyrighted content. it's absurd. if i want to upload copyrighted content to my web server and access it from other computers, that is my right. this kind of "distribution" (if you can even call it that) should be protected under fair use, just like bringing a CD to a friend's house or even lending it to them.
Parent
Re:What am I missing here??? (Score:5, Informative)
Parent
Re:What am I missing here??? (Score:5, Informative)
I think what you're missing is spelled out fairly effectively in the linked declaration. EMI sued MP3Tunes not for redistributing their IP, but for linking to locations that did. More specifically, they required not only that they remove specific links to specific songs as they had done initially, but that they remove links to every EMI song in existence claiming that they had not authorized ANY of their songs to be distributed online. MP3Tunes declined to do this and was sued. This, however, gives examples of several places where EMI HAD authorized their songs to be distributed as MP3s and thus not every link to every song they own is an infringing link.
And the accompanying memorandum of law gives you the context in which the declaration was being submitted.
Parent
Re:What am I missing here??? (Score:5, Insightful)
what's a reasonable assumption?
That copyright law still applies? That would be my "reasonable" assumption.
Unless they grant you the right to re-distribute their copyrighted works, you don't have one.
There is no implicit right to re-distribute even if you are given a copy of something for free.
Parent
Re:What am I missing here??? (Score:5, Informative)
There is no implicit right to re-distribute even if you are given a copy of something for free.
You're 100% correct, but I think it'd be darn difficult to show damages. A certain famous case comes to mind where BellSouth claimed Craig Neidorf stole documents worth $79,449. As it turns out, they offered the documents for sale (from their catalog, no less) for $13. When this came out at trial, BellSouth wisely dropped the case.
Parent
Re:What am I missing here??? (Score:4, Informative)
There is no implicit right to re-distribute even if you are given a copy of something for free.
Sure there is. Plenty of people got the Cue-Cat for free and sold it. They had the implicit right to re-distribute it after having gotten it for free. That's law, and it trumps copyright. Yes, they don't have the law to get one free Cue-Cat and make 10,000 copies they then distribute, but if they found a way to get 10,000 of them for free, then distributing them is perfectly legal.
Parent
Re:What am I missing here??? (Score:4, Insightful)
You absolutely, certainly have the right to give something you downloaded to someone else, provided you do not also keep a copy. This does not violate copyright in any way.
Parent
Re:What am I missing here??? (Score:4, Interesting)
The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.
Well, that's not entirely correct.
The reason why downloading can be infringement is because when you download a work, you necessarily fix the intangible work in some tangible medium, e.g. RAM, or a hard drive, as you do it. Fixing a work in a tangible medium constitutes reproduction under the copyright law, and reproduction is one of the exclusive rights of the copyright holder.
However, first sale applies to all lawfully made copies (a copy is a tangible medium that the work is fixed in; when you download something to your hard drive, the hard drive becomes a copy of that thing, along with whatever else the hard drive is), regardless of who made them. Any person who owns a lawfully made copy may, for example, sell that copy, without permission from the copyright holder. The statute is at 17 USC 109 if you'd like to look at it.
So if you were given permission by the copyright holder to download some music and fix it in any medium you wished, you could just start burning CDs and selling them, and it would fall under first sale. I suppose you could also just give away your hard drive or something, but generally people don't like to do that. However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.
I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.
Parent
Re:What am I missing here??? (Score:4, Insightful)
True but irrelevant. Apparently EMI is suing Robertson for the initial act of EMI distributing the file. There is no "re-" prefix on that verb.
Analogy: You tell someone to go to a bookstore (a new one, not even a used one, let's say) and buy a book, they follow your advice and purchase the book, and then the copyright holder of the book sues you for telling people to buy the book. We're talking about the first sale itself, not even a disagreement about what can be done after the first sale. Wow.
Parent
It's even simpler than that. (Score:5, Informative)
MP3Tunes wasn't even distributing the music.
All they were doing was providing links to where other entities (including, as it turns out, EMI) were distributing them.
They're saying "EMI told us to remove these links and said that they hadn't authorized any of this music to be downloaded, and look, here's where EMI was authorizing it..."
Parent
Here we go..... (Score:5, Insightful)
I am thinking that 2009 is going to be a very interesting year for the RIAA's legal team. Who hasn't heard/read about the latest foibles from the record companies and I'm willing to bet that this one won't be the last.
Monopolistic practices? Unfair trade practices? Come on now! The RIAA and it's members would NEVER do anything like that. How many here wonder how many tune/files were seeded to P2P networks by the RIAA members themselves never mind paid third parties so that their 'investigative' group could actually find file sharers? Can you say Enron? Yeah, I know it's not even close to the same thing, but I am betting it breaks open as big in the news and it's after affects when the real truth of what big record labels have been up to for the last 5 years.
Take what Sony did. There is an example of how unscrupulous they really are. Imagine the money that they have and they don't have employees that know it was not just morally bad, but illegal? Ignorance of the law is not acceptable in court.... unless you have several hundred million dollars to buy things for legislators holidays and such.
Like my great grandfather used to say... "The shit you see when you don't have a gun... damn"
He was of course talking about deer on the side of the road, which is close to road kill, and I hope that is what 2009 will label the RIAA, so it kind of fits.
More nonsense (Score:5, Informative)
As much as I support many of his efforts, he's a snake in the grass and everyone knows it now. There's not a single respectable company that's willing to come within a mile of him due to his previous actions, and this is his dying breath.
I can only hope this bankrupts him so he'll stop hurting people
P.S. When this lawsuit began, he posted on his blog about them trying to "take his minivan". He doesn't mention his massive ranch in San Diego, his Lexus (which cost about two of his (extremely underpaid) programmers' yearly salaries), or his $20M beach house in Del Mar. Fuck MR.
Re:More nonsense (Score:5, Interesting)
Michael Robertson is a scumbag.
I thought he sounded familiar. As parent mentions, here's a link to the blog of Kevin Carmony, [blogspot.com] former President and CEO of Linspire, for similar-sounding story.
Parent
oblig Riddick quote (Score:5, Funny)
Parent
Appears to be Accurate (Score:5, Informative)
I used these URL's (from the PDF) and they appear to be functional:
http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_look_good_cl.mp3 [edgeboss.net]
http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thief_A_Cappella.mp3?ewk13=1 [edgeboss.net]
http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skystartsfalling.mp3 [edgeboss.net]
http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and_country_128k.mp3 [edgeboss.net]
http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3 [edgeboss.net]
http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3 [edgeboss.net]
http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3 [emichrysalis.co.uk]
http://emichrysalis.co.uk/herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3 [emichrysalis.co.uk]
http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html [definitivejux.net]
http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3 [goldenhorse.co.nz]
http://goldenhorse.co.nz/mp3s/Fish.mp3 [goldenhorse.co.nz]
http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeandhoney.mp3&DOWNLOAD=1 [parlophone.co.uk]
http://www.parlophone.co.uk/mailers/morningrunner/Cant_Get_It_Right.mp3 [parlophone.co.uk]
http://www.parlophone.co.uk/babyshambles/timesdownload/download.php?DOWNLOAD=1&FILENAME=babyshambles-lost_art_of_murder.mp3 [parlophone.co.uk]
http://www.becrecordings.com/christaylor/1.mp3 [becrecordings.com]
http://www.becrecordings.com/christaylor/2.mp3 [becrecordings.com]
http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3 [radiomute.com]
(slashcode is attempting to auto-link in a <code> block... a pity for those who understand xargs)
Goodbye, EMI. Hello, MP3Tunes. (Score:5, Funny)
It reads like a bandful of the world's smallest violins, all playing in orchestral majesty. In fact, I feel a song coming on!
Is he suggesting there's an unlimited supply?
That there's no reason why?
Or with the ad links in the frame
He's cashing in on Slashdot fame?
(Who?)
EMI! EMI! EMI!
Capitol's lawyers makin' fuss,
From edge-served networks, download us,
An unlimited amount,
They save on bandwidth, in and out.
When mp3.com was crucified,
For business models that had died,
It was a website that was rivaled by none,
(never ever never...)
And you thought that he was faking?
That it was all just money-making?
You don't think EMI will steal?
Even if they lose their last appeal?
Oh, don't judge a band by its cover,
Unless another you discover,
And blind acceptance is a sign,
of RIAA fools who stand in line
(like)
EMI! EMI! EMI!
Unlimited edition,
With an unlimited supply,
That was the only reason,
MP3.com said goodbye,
Unlimited supply (EMI!)
And there is no reason why! (EMI!)
But with the ad links in the frame, (EMI!)
He's cashing in on Slashdot fame!
Though Beam-it bent UMG's rules (EMI!)
R.I.A.A.'re still useless fools (EMI!)
Unlimited supply.
Hello, MP3Tunes. Goodbye, EMI.
- With apologies to the Sex Pistols, and you should all be grateful I can't sing, or I'd have dubbed it onto the original track and uploaded the result to MP3.com as a parody.
All I want to know is that if Robertson wins, will he carry out on Sigue Sigue Sputnik's 22-year-old threat to Buy EMI [www.last.fm]
Re:Free != free to redistribute (Score:4, Informative)
Just because someone gives you a copy of their copyrighted work doesn't mean you get to copy and redistribute it.
No shit.
The owner of the copyrighted work explicitly grants any and all rights regardless of how much they are charging for a copy of the work (even when they are giving it away for free).
- Roach
THEY WERE NOT REDISTRIBUTING IT. They were *linking* to content stored on Capitol/EMI servers, or servers owned by third parties (such as Akamai) for the purpose of distribution Capital/EMI content. The point that they're making in the court submission, if you bothered to read it, was that it was acceptable for parties (maybe Google) to link to it, but not MP3Tunes.
Parent
Re:What's NewYorkCountryLawyer's angle on this one (Score:5, Interesting)
I couldn't really figure out what NYCL's summary was trying to say here, other than link to the 10-page declaration as simple info. Are we meant to read something into this, other than the general "Labels are doing shenanigans again" message? Or does this feed into the RIAA issue or even into current cases in some specific way?
I wasn't really "trying to say" anything, just reporting on some interesting facts. Yes this plays into all of the record companies' stupid cases, in MANY ways, relevant to MANY issues. No way could I now start discussing that in a public forum, but lawyers representing defendants will have a field day with this stuff...
Parent
Re:What's NewYorkCountryLawyer's angle on this one (Score:5, Insightful)
NYCL I love you. I was surprised to find you were the older of the ones pictured on your website, thinking my elders didn't have a clue about technology. For that I am sorry. You are not on the side of your clients, at least not publically on riaavsamerica blog. You are on the side of what you believe to be true, based on of your countless university hours and countless hours in reality on top of that. There have been very few people, since I first became aware of politics in the early Clinton days, who took a stand on belief rather than financial or political gain. Your continued investment in the purely informative postings you continue to provide, as well as your cameo commentary on aggregators such as this, suggests you are trying to follow the law, as opposed to following the money. I could be biased, being on a certain side of the RIAA cause. But I have thought for a number of years -- no one in this country would give up their home for a cause. Few would go to jail for the confidentiality of their sources. If we had a civil war we would struggle to find someone to fight. Because everyone has a decent job, or at least most people do (unemployment isn't that high), and those who don't, don't automatically have to become toilet cleaners. Our economic status was, for a while, equal to none. And throughout that, you posted information, then questions, then support, then as we see here back to information again, for the good of... not yourself certainly. Please, do not humor me with a personal reply as you so frequently do here. Instead, accept the thanks of a million geeks who could not otherwise provide any feedback in any fashion. You are the last starfighter, the last true outpost in American society. If we can't understand the digital revolution and all of the intricacies that it introduces, we are in a world of hurt. And if "we" have cushy enough jobs and a reliable paycheck due to minimum wage hikes, there is no incentive to take the war into a public and therefore personal (or vice e versa) space. I see it with my colleagues and read about it here. No one wants to fight. So what if you were Skywalker? Or Mowgli? Or for shit's sake Neo... The fight is the same, the truth is the same, the enemy is the same. The fight is the same, and most people don't know it is happening. But if they knew where to look, they might have more than just a feeling.
Thank you for your kindness. But I am not the last starfighter, I am one of many. And when we are no longer here, there will be others to take our place.
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