[Infowarrior] - New War on MP3s: EMI's Push to Ban Remote Music Storage

[Richard Forno]

he New War on MP3s: EMI's Push to Ban Remote Music Storage
C:\Spin #196

by Ryan Radia
March 24, 2008

http://cei.org/node/20537

Like never before, intellectual property is a hot issue, with media
companies waging a global legal campaign against copyright infringement. The
music industry has gone to court to combat perceived threats ranging from
multinational piracy rings to casual file sharers. Recently, it has won some
big victories in court. Yet this frenzy of litigation has yielded some
troublesome legal precedents, which highlight the shortcomings of
intellectual property law in the United States.

The next potential casualty of America¹s deficient copyright regime is
MP3Tunes, a Silicon Valley startup founded by Web entrepreneur Michael
Robertson, which lets users store digital music files in a secure, Web-based
locker they can access from anywhere. MP3Tunes lets listeners access only
music they have uploaded themselves. Like a handheld MP3 player, MP3Tunes
frees music lovers from dragging around massive album collections on
physical discs.

But now Robertson¹s service has run into a major obstacle. EMI, a major
British record label, has sued MP3Tunes for copyright infringement. EMI
contends that since users are transferring their music to a third party
without getting permission from the record label, MP3Tunes is violating
EMI¹s exclusive right to distribute its music. MP3Tunes faces tough odds
given past rulings in copyright infringement cases.

EMI¹s argument seems tenuous. MP3Tunes doesn¹t ³share² files with anybody
but the original owner, and paying a third party to act as a custodian does
not imply a transfer of ownership.  Individuals can already store digital
files online using myriad services from Flickr to Mozy. We increasingly back
up our entire lives to online repositories, and the individual, not the
website, remains the owner.

To be sure, intellectual property deserves strong legal protections, and
content owners must be empowered with legal tools to combat piracy. But this
does not mean laws should erect ironclad walls around digital media,
dictating what consumers may do with files they have already purchased.

At some point, content owners have to leave some breathing room. Once
someone has purchased an album, moving that music online doesn¹t undermine
future commercial opportunities for the record company as long as the
original buyer retains exclusive access.

The digital age presents new challenges in defining copyright terms.
Distinctions based on physical ownership of tangible media seem downright
quixotic in a world where intellectual property can be transferred
electronically through the Web. Still, current copyright laws fail to
recognize the changing face of the music business, relying instead on an
obsolete definition of digital media ownership.

Content owners have rights, but those should not extend to shutting down
music storage websites that are not abetting copyright infringement. And
nothing is stopping EMI from developing its own digital locker service. That
a Web startup dreamt up an innovative business model to complement
consumers¹ busy lifestyles is no cause for judicial intervention.

MP3Tunes is neither facilitating piracy nor discouraging people from buying
music in any way. In fact, by making music collections more accessible and
therefore more valuable, MP3Tunes might actually cause people to buy more
music.

This is an old story, familiar since Napster burst upon the scene: Instead
of fighting sites like MP3Tunes, major labels would be wise to embrace new
ways of delivering value to consumers. Rather than fight Silicon Valley
startups, the big music labels could partner with them.

The digital era presents a golden opportunity for consumers and producers
alike, if only companies and courts can keep pace with the breakneck pace of
technology. Listeners¹ appetite for compact discs may have waned, but not so
with digital media files. ITunes recently announced that is has sold over 4
billion songs. In addition,   the runaway success of satellite radio and
online music subscription services point to a bright future for new music
distribution media .

Clinging to outmoded distribution methods will not restore the major labels¹
past glory. Heavy-handed tactics will only drive people toward forms of
entertainment with flexible rules and innovative supply schemes.

Just as importantly, lawmakers should not support entrenched media¹s efforts
to squelch new media at the expense of consumers and the equally valid
business models of tomorrow.

The MP3Tunes dispute underscores the need for substantive copyright reform.
The 1996 Digital Millenium Copyright Act (DMCA) sought to preempt future
copyright skirmishes by establishing new protections for content secured
through Digital Rights Management, but it has fallen short of this aim.

The DMCA has its merits. Its Safe Harbor provision, which shields network
providers from liability for users¹ actions, has been essential in promoting
network investment and fostering online commerce. Without legal protections,
network operators would have little choice but to preemptively suppress a
lot of user speech to avoid costly court battles.

But other parts of the Act have been more troubling. The most widely
criticized section is the anti-circumvention clause, which bans outright any
device or software that breaks copy protection. For example, DVDs are
copy-protected, so any program that allows owners to make back-up copies is
illegal‹even if no piracy is involved. Some experts, including noted
cryptologists like Dmitry Sklyarov, have decried this section as chilling of
academic speech.

Some might conclude the obvious answer to the intellectual property dilemma
is a sweeping new law, enumerating content owners¹ and consumers¹ respective
rights. But technology is constantly evolving, and any new regulation is
bound to face the same difficulties that plague the DMCA today.

When Congress tries to foresee the unforeseeable, failure is inevitable. A
better approach would be to empower courts to balance intellectual property
rights with free speech on a case-by-case basis, while at the same time
reexamining the DMCA. Should new legislation become necessary, lawmakers
should tread carefully, framing the issue with general principles rather
than technical specifics designed to compensate for every possible
eventuality. 

Pioneering businesses like MP3Tunes embody the future of digital
entertainment, but unless balance is restored to America¹s intellectual
property regime, consumers may end up stuck in the information stone age.