Illustration from the Cyber Law Centre.
For dedicated music fans (even those who still prefer vinyl or can detect the differentiation between an mp3 and aiff file), cloud music services are one of the more useful technological advancements to arise in the mix. A “cloud,” also referred to as a “locker,” is this invisible warehouse floating around computer waves storing everyone’s music until they need it. A user can upload their files directly, or in some cases, the cloud will screen a music library then match tracks to its stock collection. For example, if you own a song by the Beatles, the cloud will register the title, then play the song from its own master source. Though most people use iPods for on-the-road soundtracks, there are limits to capacity that don’t apply to the cloud; furthermore, the cloud is at your disposal no matter what computer or phone you’re using. Where you go, your library follows.
There are a few different cloud services available, the primary three being Apple, Amazon, and Google (currently under investigation for antitrust); then there are the smaller, less branded names like MP3Tunes, antihero of the music industry. While cloud services are beneficial and exciting for users, they arrive with much resistance from business executives. The problem, as always, is copyright infringement. For a majority of music consumers, the bulk of their record collections consist of pirated songs, so the omnipresence of the cloud essentially rewards them by providing extended access to illegal downloads, thus maximizing utilization. To add insult to injury, in some instances, you can share your music with other locker owners, exponentially increasing unauthorized manipulation.
The recent legal decision in the battle between EMI and MP3Tunes made a major statement in support of cloud music services, a victory for the techie and sign of doom for the label. MP3Tunes considers itself a locker service. Users are provided with a certain amount of space to upload their songs, and can access their lockers from any internet-enabled device. If they want more space, they pay a subscription fee. Additionally, the site is linked to a sister page, Sideload.com, which enables users to search and find free music on the web and drag them into their lockers. Not surprisingly, the patent flags were raised all over the place, and EMI sued MP3Tunes, claiming it provided a haven for pirated sound recordings. EMI contended MP3Tunes users were sharing and enjoying the label’s works at the benefit of MP3Tunes and the diminutive loss of the label and its artists.
Nevertheless, EMI lost. Under the Digital Millennium Copyright Act, innovation favors out stringent licensing restrictions.
As the court noted in their ruling, “The DMCA seeks to balance the interests of copyright owners and online service providers by promoting cooperation, minimizing copyright infringement, and providing a higher degree of certainty to service providers on the question of copyright infringement…Toward that goal, the DMCA provides certain safe harbors (i.e. limitations on remedies for copyright infringement), but only for qualifying service providers. As courts have emphasized, “this immunity is not presumptive, but granted only to ‘innocent service providers…”
It was a victory heard round the world wide web, as the precedent will certainly build stronger cases for services like Spotify and Grooveshark, operating under similar parameters as cloud services. MP3Tunes was deemed an innocent bystander, despite rampant infringement across its sites. What was most remarkable is how the law created holes perfectly suited for these programs to slip by. It’s a prophecy for the future of music and a statement on fans and their interests. As industry insider, “Bob Lefsetz,” writes in his blog:
“The techies have the leverage, because they have the public on their side, and the public really drives this whole thing, and if you leave yourself off of streaming services you’re just hurting yourself, or to paraphrase that old sage Warren Miller, you’re just gonna be one year older when you do cave and license…”