You may have read recently that the US Supreme Court declined to take up the Cablevision case. This was where Hollywood studios and some cable networks sued Cablevision for providing essentially a network-based TiVo, where the programs that the subscriber requested to be recorded were saved on Cablevision’s servers, not on the box that sat atop their television. That the Court decided to let the appeals court’s decision stand — that Cablevision was not directly liable for public performances — is a good thing because it’s a ray of hope that lets online service providers know that (for now) they’re free to develop innovative “cloud-based” services. Which is where I come in…
I am the CEO of MP3tunes, which offers secure online digital music service so users can store their personal song collections and access them from anywhere. Once uploaded, users can enjoy their songs from any net connected PC, iPhone, iPod touch, mobile phone, net radio or even a car by simply supplying your username and password on the device (see examples and screenshots). They no longer have to carry around songs, convert them into compatible formats or worry about a digital disaster wiping out their music collection. The MP3tunes service has attracted 250,000 users, but also the fury of 13 record labels and publishers.
In a lawsuit filed in New York major label EMI and others have accused MP3tunes and me personally of willful copyright infringement for providing this personal storage service. Their claim is that the act of storing files and making them accessible is an infringment. And unlike Youtube where one user stores the material and an unlimited number of people can access it with MP3tunes all material is password protected at all times. Only the account holder who possesses the account name and password can access the material. There is not (and never has been) anonymous or public access. Yet, EMI and others have gone so far as to accuse not only the company, but me personally of willful copyright infringement subject to fines of up to $150,000 per work. By naming me personally they have invoked an increasingly common strategy targetting management, investors, board members and even third party developers to compel a net company into ceding to legal pressure.
There are many online storage sites and MP3tunes is neither the largest nor most permissive. Microsoft gives users 25gbs of free storage and an “everyone” folder to share via their SkyDrive service. There are several drop box type of services ranking in the top 100 most popular web sites where users can quickly and anonymously store and exchange materials. Many users take advantage of Google’s Gmail service to store files as well as exchange them with others.
What distinguishes MP3tunes’ service is that it has special features for music such as playlists, cover art, flexible format handling and an open API which allows the music to be played on many different devices, not just a PC. While these features make it useful for songs, MP3tunes fundamentally doesn’t do anything different than other online services offering file storage, web hosting or email service which allows materials to be stored online. Perhaps the record labels believe that MP3tunes makes an easier legal target than Microsoft, Yahoo or Google.
The DMCA even provides protection for services such as MP3tunes which store information at the direction of the user. The statute reads:
“A service provider shall not be liable for monetary relief… for infringement of copyright by reason of storage at the direction of a user…”
In addition, one could argue that storing your own material online is an allowed fair use activity called space shifting as mentioned by the 9th circuit in the Diamond Multimedia MP3 player case.
The MP3tunes case is winding its way through the court. The Judge has thankfully dismissed the claims against me personally, but the case against MP3tunes is ongoing with depositions of several employees. While EMI Records has hired experts to extensively analyze MP3tunes source code they claim digital ineptness when requested to search their own email system for relevant documents.
While the 2nd Circuit has given us all a good outcome in the Cablevision case, the threat is still out there. At stake in my legal battle is not just a personal online music service, but any web based service in which users store their own material. Our society is going digital. Anything that can be converted to ones and zero is moving to the cloud. Once in the cloud you can access it from any location, any device and manipulate it in an infinite number of ways. If commercial services that store users material online can be sued out of existence by media companies, then consumers lose out on this enormous benefit.