There’s been a lot written about the recent legal decision in the copyright case against Mp3Tunes, which was sued by the record label EMI for offering a “cloud-based” music service, and about which side won the most concessions in the complicated legal ruling. But one thing that didn’t get talked about a lot is just how long Mp3Tunes founder Michael Robertson has been fighting to make cloud-based music a reality — a fight that extends beyond this particular battle with EMI, and all the way back to the beginning of the digital music revolution. Without his stubborn refusal to back down, we might not have many of the things we take for granted today.
To recap the decision in the Mp3Tunes case, EMI sued the company for what it said were a number of copyright-infringing features of the service — including that users could “sideload” songs to their online lockers, by transferring them directly from online sources such as Amazon, and that the service “de-duplicated” songs stored on its servers, so users who shared a specific song would simply access one copy instead of having to store two separate copies. As with many similar music-sharing lawsuits, EMI also argued that the simple act of copying a song to a cloud service was an infringement of copyright.
Cloud-based lockers ruled legal
Depending on whom you believe, the court ruling (PDF version here) was either a split decision or a 99-percent victory for Mp3Tunes. EMI said that it was happy about a number of things, including that the court found Robertson personally liable for “sideloading” songs he didn’t own the rights to (
because they were from unauthorized sources). Robertson, meanwhile, said he believed Mp3Tunes had won the majority of the decision, since the court ruled sideloading was not an infringement — provided the source was properly licensed — and de-duplication was also legal. Said Robertson:
Overall it was an enormous victory for MP3tunes and digital music compatriots like Amazon, Google, and Grooveshark. It wasn’t a complete victory and it is not a final ruling because there are outstanding issues and both sides can appeal, but we’re prepared to continue battling for the last 1%.
Unless you’ve been following the evolution of digital music for a long time, you might have seen the Mp3Tunes lawsuit as just another in a long line of attempts by the major record labels to squeeze money out of digital services, as they continue to fight the ongoing disruption of their business model. And that’s true, but Michael Robertson isn’t just one of many startups that have gotten wrapped up in music-industry red tape over the years. For the industry, he’s been like the Patient Zero of the digital era, the one who infected everyone else with ideas about how online music should work.
Mp3Tunes paved the way for Google and Amazon
When Google and Amazon both launched their cloud-based music services earlier this year, what they were offering seemed pretty obvious. Of course you should be able to upload your music to an online storage locker, and access that music wherever and whenever you wanted to, and move songs that you bought through those online services into your locker at will. When a number of observers wondered about the legality of these features — since neither Google nor Amazon seemed to have signed any deals with the record labels first — both companies effectively said that they didn’t need licenses and believed they were on firm legal ground.
If that legal ground was firm at all (and there’s still some debate about just how firm it is), Michael Robertson deserves a lot of the credit for making it so. Although the EMI case against Mp3Tunes dates back to 2007, Robertson has been fighting this particular battle for more than a decade — almost since the Mp3 file was first invented. Robertson’s first attempt at a cloud-based music service, called simply Mp3.com, appeared in 1997, before many people had even heard of web-based email, let alone what we have come to know as the “cloud.” And it was briefly a big hit on the stock market during the dot-com bubble years.
At that point, however, the record labels were still fighting tooth-and-nail to try to forestall the inevitable digital evolution, and they sued Mp3.com as a group for what they claimed was massive copyright infringement. Robertson settled with many of the labels, but Universal Music pursued the case; Mp3.com eventually lost; and was forced to pay $53 million. The company was ultimately sold to Vivendi, which tried to operate it as a licensed music-buying service but failed to get much traction.
Robertson just kept on fighting
Most founders would probably have licked their wounds and moved on to something else after such a loss, and Robertson did launch a few new battles against other incumbent industries. He started a company called SIPphone that was aimed at using open-source software to provide Skype-style phone service, and he launched another that was originally called Lindows, which offered a Linux-based competitor to Windows (after a legal threat from Microsoft, the name was changed to Linspire). But he didn’t give up on the cloud-based music idea, and the next venture was Mp3Tunes.
When Google and Amazon launched their services, I asked Robertson what he thought about the two giants coming along after all of his battles and offering what was essentially a duplicate of the service he had been trying to offer for a decade or so. His response surprised me somewhat because he was so sanguine about the outcome, and about how that’s the kind of risk that an entrepreneur takes: that someone will come along and succeed where they failed:
That’s the free market. The same thing that allows me to do it allows anyone to come along and copy me and compete with me. It’s not enough to have the idea, you have to have the execution and the timing — and being early is almost the same as being wrong.
Would the digital-music landscape look the way it does if Robertson had not kept fighting? Perhaps. The record labels might have evolved or made the decisions they have regardless — but it’s also possible that they might have dug their heels in even harder. And there’s no doubt the Mp3Tunes founder knew what he was getting into: as the old saying goes about entrepreneurship and startups, “the pioneers get the arrows and the settlers get the land.” But every now and then it’s worth paying a bit of attention to those pioneers, because without them, there might not be any land to settle.