Capitol Records Flooded Internet With MP3s, Says MP3Tunes CEO 168
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."
First Sale Doctrine, maybe? (Score:3, Interesting)
Sounds right to me. You can't just distribute a copyrighted work willy-nilly if you are not the copyright holder (or a licensee).
On the other hand, there is also the right of first sale [wikipedia.org], which says that if you purchase a copyrighted work, say a CD full of music, you have the right to sell that CD to someone else as long as no copies are made. I'm not an expert on this limitation on copyright, so I'm not sure how it works with digital non-software files. If I legally download a free MP3 file from a valid distributor without any kind of licensing agreement, is there a legal restriction that stops me from sending that file to someone else, provided that my file is also deleted?
Maybe "free" isn't considered a sale...
Re:Free != free to redistribute (Score:3, Interesting)
Which might lead to a point about providing links;
I checked the links on this doc, most work and only one asked me for any personal information. No click through, no shrink-wrap 'license' just the song presented in my browser. This might be the only complaint EMI might/should have with MP3Tunes, they are circumventing (theory) the presentation/context of this music. The larger gripe, and where EMI should be aimed, but for what ever reason they're not as they (the RIAA) seem to enjoy attacking customers and folks that make finding things easier (index services) are the non EMI folks also providing the music. I hate to put it this way but scumbags or not, MP3Tunes or Google, where does this kind of harassment end? I can find 'filez' just as easy with google as I can with any of the search sites.
IANAL (sounds like a new apple product, no?)
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.
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.
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...
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...
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.
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.
Re:Here we go..... (Score:3, Interesting)
"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself.
Hm, sounds problematic to me. Copyright doesn't include an exclusive right to listen to music. The copyright holder can control making copies of the music, making derivative works based on the music, performing the music, broadcasting the music, etc. but not actually listening to it. That's free.
The closest the copyright holder could get would be to not let anyone else have copies of the music, and to require anyone who wanted to listen to have to pay a fee to do so. This would basically be providing a venue -- the same thing that a concert hall does -- and would really have nothing to do with copyright. Charging admission to venues works just as well with public domain materials (e.g. paying money to go see an uncopyrighted movie in a theater).
The other stuff though; the 'do anything with it you wish' is far more interesting. That would permit people to, say, make derivative works based on the music (e.g. a music video), and with the paltry limitations, to publicly perform it (e.g. on MTV) or rent out copies of it.
The copyright law also says that you must be granted rights explicitly rather than assuming them.
No, it says no such thing. In fact, copyright licenses are probably more often implied than express. For example, your post to which I am responding is (probably) copyrighted. You didn't expressly give me permission to download it (as I necessarily must simply in order to read it), but were you to take me to court over it, you'd surely lose, because your conduct in posting it to a public forum such as this granted me that right.
The law does say that exclusive licenses have to be written and signed by the licensor, though, so perhaps that's what you were thinking of.
If that also applies to advertising my goods then the location of the ones that I am giving away for free for certain purposes (usually promotional to a specific group) is mine to distribute as well.
Why would the location be copyrightable at all? Sounds like an uncopyrightable fact to me.
I don't grant you the right to figure out how to make the cars real and give them away, only I have the right to do that.
Well, you'd have to have that right. Certainly copyright only covers a few specific rights with regard to a work, leaving the rest to the public domain even during the copyright term (e.g. while not everyone has the right to print up new copies of a book, everyone has the right to read extant copies at will). I think the analogy does break down here -- patents require you to tell the world how to do it, if that's what the subject of the patent is. Trade secrets don't protect against reverse engineering, so anyone is free to apply their own brainpower to breaking your control over the secret by independently discovering it. And while we're all well aware of how perverted copyrights have become, traditionally they mainly tried to protect published works, not secret ones. (Of course, there is good reason to protect manuscripts that are intended to be published in the near future, lest pirates cut the author off at the pass, as it were, but it is important to keep this from being abused; if an author has no intent to publish, or is being ridiculously slow, then, setting aside whatever right of privacy implications might arise, copyright policy would favor the pirate; creative works are only good for the public when the public can get at them)
And no simply because it is available on a particular URL for download it is NOT free of licensing nor do you even have permission to download it.
True. Merely because a work can be accessed at a particular URL doesn't mean that everyone has the right to do so where it would infringe to do so (and since downloading is necessarily copying, permission or an
Re:First Sale Doctrine, maybe? (Score:3, Interesting)
MP3Tunes claims to use fair-use rules to allow you to pipe your music where you want it. According to them you would put the music that you "own" into a "locker" and they would share it to you on a phone, iPod, or thru the web to work or school. According to them legally it's the rights to "your" copy that you are moving...
but the labels are suing them for charging for running a service to make sure the fair-use rules are followed and not rampant illegal file sharing. It's certainly a grey thing MP3Tunes is doing, but for the label to say MP3tunes is taking away profits, then offer the same music for free and no DRM.. but not to legit customers like iTunes or other MP3 services like emusic is a bit two faced. Going to court and asking for damages is out of line.
Re:First Sale Doctrine, maybe? (Score:1, Interesting)
'sale' in this case is the exchange of goods. If i mail you a CD, even if I call it a demo, First sale applies.
Free isn't an issue, its yours now. Period. Your property.