Capitol Records Flooded Internet With MP3s, Says MP3Tunes CEO

NewYorkCountryLawyer writes "In court papers filed in New York in Capitol Records v. MP3Tunes, the CEO of MP3Tunes, Michael Robertson, has accused the plaintiffs EMI, Capitol Records, and other EMI record labels of flooding the internet with free MP3s of their songs for promotional purposes, 'free to everyone (except, apparently, MP3tunes).' His 10-page declaration (PDF) provides exact details of specific song files, including the URLs from which they are being distributed free of charge, both by paid content distributors, and by EMI itself from its own web sites."

Comments

First Sale Doctrine, maybe?

[Anonymous Coward]

Sounds right to me. You can't just distribute a copyrighted work willy-nilly if you are not the copyright holder (or a licensee).

On the other hand, there is also the right of first sale, which says that if you purchase a copyrighted work, say a CD full of music, you have the right to sell that CD to someone else as long as no copies are made. I'm not an expert on this limitation on copyright, so I'm not sure how it works with digital non-software files. If I legally download a free MP3 file from a valid distributor without any kind of licensing agreement, is there a legal restriction that stops me from sending that file to someone else, provided that my file is also deleted?

Maybe "free" isn't considered a sale...

Re:First Sale Doctrine, maybe?

[lysergic.acid]

and yet every label knows that 99% of the promo CDs they send out will just end up in the used bin at local record shops.

we try our best to mark promo CDs as such. record companies used to punch holes in the album covers of their LPs meant for promotion use or print "white label" records to distinguish them from the retail product. these days we just use sharpies to write "PROMO" on the covers, but it really is a futile effort. if you go to any mid-sized record store with a used/second-hand section, you'll still find tons of promo materials being sold.

occasionally we'll come upon our own promo CDs being sold at a record store, and in those situations we'll ask the owner to take them off the shelves or just buy them back. but as far as i know, it's not actually illegal to sell promo CDs.

and regarding the relevance of Capitol Records distributing free mp3s to this case, i think it has to do with the plaintiff's claim that MP3Tunes has "severely and irreparably [injured] Plaintiffs and other copyright holders by eroding legitimate sales of music through both traditional and online channels." i think those claims are dubious at best to begin with. but if Capitol Records is already distributing their own music all over the web where anyone is free to download it, then they can't really claim that MP3Tunes is eroding their sales simply by allowing their users to access their own uploaded music from any computer with an internet connection.

i mean, they might as well sue wireless router or S/PDIF cable manufacturers for illegally distributing copyrighted content. it's absurd. if i want to upload copyrighted content to my web server and access it from other computers, that is my right. this kind of "distribution" (if you can even call it that) should be protected under fair use, just like bringing a CD to a friend's house or even lending it to them.

Compared to other heavyweights..

[lmnfrs]

I think this stuff is standard practice for a big organization in a powerful position. Yesterday I tried buying coffee beans from a small (2 location) coffee shop located in a mall. Apparently Starbucks had leased a spot elsewhere in the mall and negotiated a clause into their contract with the mall. The small shop could sell Starbucks beans or make coffee with their own beans, but was forbidden from selling their own beans.

I'm not sure why that situation doesn't qualify as anti-competitive, but controlling distribution options is a basic part of some businesses' plans.

Re:Compared to other heavyweights..

[GiMP]

I once came across something similar where a small restaurant couldn't even sell brewed coffee because of a Starbucks in the shopping center! Likewise, Starbucks had a contract with the landlord...

Re:More nonsense

[PCM2]

Michael Robertson is a scumbag.

I thought he sounded familiar. As parent mentions, here's a link to the blog of Kevin Carmony, former President and CEO of Linspire, for similar-sounding story.

Re:What's NewYorkCountryLawyer's angle on this one

[NewYorkCountryLawyer]

I couldn't really figure out what NYCL's summary was trying to say here, other than link to the 10-page declaration as simple info. Are we meant to read something into this, other than the general "Labels are doing shenanigans again" message? Or does this feed into the RIAA issue or even into current cases in some specific way?

I wasn't really "trying to say" anything, just reporting on some interesting facts. Yes this plays into all of the record companies' stupid cases, in MANY ways, relevant to MANY issues. No way could I now start discussing that in a public forum, but lawyers representing defendants will have a field day with this stuff...

Re:What am I missing here???

[cpt kangarooski]

The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.

Well, that's not entirely correct.

The reason why downloading can be infringement is because when you download a work, you necessarily fix the intangible work in some tangible medium, e.g. RAM, or a hard drive, as you do it. Fixing a work in a tangible medium constitutes reproduction under the copyright law, and reproduction is one of the exclusive rights of the copyright holder.

However, first sale applies to all lawfully made copies (a copy is a tangible medium that the work is fixed in; when you download something to your hard drive, the hard drive becomes a copy of that thing, along with whatever else the hard drive is), regardless of who made them. Any person who owns a lawfully made copy may, for example, sell that copy, without permission from the copyright holder. The statute is at 17 USC 109 if you'd like to look at it.

So if you were given permission by the copyright holder to download some music and fix it in any medium you wished, you could just start burning CDs and selling them, and it would fall under first sale. I suppose you could also just give away your hard drive or something, but generally people don't like to do that. However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.

I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.