In many ways, it seems like the “bad old days” between content and internet companies are over. While Viacom’s high-profile copyright lawsuit against YouTube is moving to an appeals court, dozens of companies have struck deals with YouTube to split ad revenue.
Yet the recording industry has pushed ahead with a uniquely aggressive approach to enforcing its copyrights. Not only have record companies sued tens of thousands of individuals who have downloaded music, they’ve successfully sued a small coterie of internet startups over the years. Universal Music Group alone has forced a not-insignificant group of internet companies-iMeem, Multiply, Grouper Network (now Cackle), Bolt.com, MySpace (NSDQ: NWS), and MP3.com-to either fork over settlement cash or go out of business entirely.
Now, a lawsuit filed by EMI against music-storage service MP3tunes.com, which stores and formats users’ MP3s and videos so that they can be used on various devices, is moving into its final stages. It’s an important case because, a full decade after Napster, internet companies have finally started to win in court. In the past year, both YouTube and the now-defunct Veoh won lawsuits after being sued by large content companies for copyright infringement.
Judges ruled that YouTube and Veoh were both protected by the “safe harbor” provisions of the Digital Millennium Copyright Act-meaning upset content owners would have to send takedown notices rather than file lawsuits. In a motion [PDF] filed Friday, MP3tunes takes its best shot at winning on the same grounds. Oral arguments on the issue, and EMI’s opposing motion, will take place at the end of January.
Michael Robertson, the founder of MP3tunes, has already faced off with the music industry in court once before when record labels sued MP3.com, the company he started in 1997. Robertson lost that battle. Will the music industry and new online services ever be able to get along? Below, excerpts from an interview with Robertson on that and other questions.
paidContent: Veoh and YouTube have recently won high-profile defense victories against content companies. Do those wins make you hopeful about your own case?
Michael Robertson: Their defense was the DMCA, and that’s exactly our defense. The DMCA has four safe harbors, and one is “storing material at the direction of the user,” and that’s what we do. YouTube was a fantastic ruling for us. There’s some great precedent there.
Why do you think EMI targeted mp3tunes?
I founded mp3.com. As part of founding and growing that company, I helped make MP3 the universal standard that it is. Some people looked at me as a devil in the music industry. They thought, here we were getting $20 for CDs until this guy came along with mp3.com.
Put yourself in the shoes of the media executives for a minute. Isn’t internet piracy a very real problem?
You must figure out a way to swim with the tide instead of against the tide-to use people’s innate curiosity and desire to share things they find interesting as a way to drive awareness, and sales, for your business.
To me this is like the drug war. You can spend billions if you want, but you’re wasting your time. You’re better off recognizing that people want immediate access to content-and then get them into legitimate e-commerce activities.
Do you see any possibility of compromise on either side in your case?
I don’t think there’s any chance of compromise here. They want me to pay them for every song that you already have. They want me to pay for you to have the right to store it online-to pay every time you click the play button. They want a dollar sign connected to every device that you touch.
For Napster, or Rhapsody, a subscription service – that may be an appropriate model. But if you’ve already paid for the song, the music industry shouldn’t be able to demand more money from the consumer.
If I lose, the companies that should be worried are Google (NSDQ: GOOG) and Apple (NSDQ: AAPL) and Microsoft (NSDQ: MSFT) and Yahoo (NSDQ: YHOO) and Facebook-anyone who offers online storage. Because all of those guys have music files [in their storage systems] as well.
Longer range, do you see an end in sight to the legal conflicts between media companies and internet companies?
Eventually, we’ll get enough victories where the media companies stop these attacks. Eventually all these crazy arguments-that you’re not storing things the right way, or, you have links to things-all these arguments will go away.
If someone were creating an internet startup tomorrow, is it clear what steps should they take to stay safe from copyright suits under the DMCA?
It’s getting clearer, but we’re obviously not there yet, because we provide pretty basic storage and we’re still getting sued. And they’ve [Viacom] appealed [the] YouTube [ruling], so, they’re still trying to turn back the hands of time.