EMI Using Rapidshare To Market Music

An anonymous reader writes "While Rapidshare defends itself around the world from lawsuits by media companies for copyright infringement, new evidence was revealed that UK-based major label EMI is putting music on Rapidshare and directing people to download it in the hopes that it spreads 'virally.' This came to light in the ongoing copyright battle EMI v. MP3tunes over personal cloud media storage and the Sideload.com music search engine. EMI accuses MP3tunes of enabling piracy by linking to Rapidshare, but since EMI is using Rapidshare, this would seem to weaken their argument considerably. You can read the legal brief online."

Comments

Make up your mind

[somersault]

Morons. If they're the ones doing the original copyright infringement and putting the files up on a file sharing website for anyone to get to, doesn't that kind of negate their claim on copyright infringements when people, you know, copy the files?

Re:Make up your mind

[clone52431]

You seem to expect them to be logical, consistent, or reasonable. Don’t.

Re:Make up your mind

[SuricouRaven]

It's impossible for them to infringe upon their own copyright. But, if they are putting the files up and not identifying themselves, they could arguably be promoting infringement of their copyright by others. It appears that EMI has been using rapidshare as a promotional tool, but has been unwilling to admit that for fear that this could be seen as legitimising the site.

Re:Make up your mind

[clone52431]

No... even if they do it anonymously there is no copyright infringement. They (the copyright holder) are still explicitly authorizing people to download it. (That’s why they had to invent the “making available” charge. The copyright holder can’t sue you for downloading the song from them.)

They might have shot themselves in the foot, too... now anyone who downloads music from Rapidshare could claim that they didn’t know it was an unauthorized copy, since they’ve heard of some record companies putting their music on RS as a viral promotion campaign. How can you know for sure? It’d be an interesting case to watch, just for the precedent’s sake...

Re:Make up your mind

[geegel]

Depends on the jurisdiction. Here in Romania, there's no such thing as "illegal download". You can only be charged for distribution.

Re:Make up your mind

[CastrTroy]

Maybe they don't mean for anyone else to do it, maybe they just put the files there so they could access them later. To be more precise, just because I put some source code up on an FTP Site, doesn't give somebody the right to violate copyright on it. Think about it this way. Linux is available for free on many web sites around the world. But if you want to go around distributing it to other folks, you have to follow the rules set out in the GPL (which extend the freedoms of copyright). So, possibly EMI putting the files up on Rapidshare (and telling you to download it) gives you the right to download it. But it doesn't give you the right to then distribute it to everyone else. Another explicit licence would be needed for that.

Re:Make up your mind

[natehoy]

No, for the files they share they are legally and legitimately offering copies for free. There's no infringement happening there. That is the normal defense used for the existence of these sites, to serve as a clearinghouse for labels and artists who CHOOSE to share their work openly in order to promote it, right? Why can't EMI participate in that same clearinghouse for the songs they choose to share, like everyone else? EMI has a gigantic catalog, why shouldn't they be allowed to share parts of it if they choose to? EMI is actually adding legal and legitimate content to the site.

The obvious part, of course, is that EMI cannot offer a song to you on RapidShare and then sue you for downloading it and seeding the exact same version of the same song, but they have to sue you in order to pursue damages, so they'd have no basis for a suit if you stuck to specific versions of songs they shared. So if you can identify it as a "legal" one, you're good.

For the other pieces of music that EMI is not sharing but that others are, well, did I mention that EMI is not sharing those? Those are still things that EMI could legally come after you for. The same is true of versions of the song EMI chose not to share that someone else is (higher bitrate, etc). EMI is the rights-holder, they can release any portion of any song in any version they damned well please. That doesn't open the rest of their catalogue for free use by everyone, or even that different versions of the same song are free for use.

Let's say I'm EMI. I have two artists signed with me, with one album each. SoundsLikeValiumLooksLikeAGirl is my boy band, and ScreechyButSkankyAndGotBigBoobs is my girl band.

I don't want people to listen to Screechy's actual signing, dear God no, I sell her albums to horny teen boys based on the airbrushed cleavage on her album covers and the large pull-out centerfolds in the album art insert, and her reputation for skankiness so young horny boys can fantasize about the diseases they could catch from her. I don't want her album shared on RapidShare because I want to sell more album art, and I don't want my young horny hormone-driven money-sources to actually hear her voice, it might turn them off.

But young girls love Valium's smooth, overly synthesized, vapid sound, so I share out a few of their songs at 128k MP3 so the girls will buy the rest of the album because they can't get enough of his smooth synthesized voice and want a higher-quality version.

I cannot sue anyone for the specific versions of the songs I've released on RapidShare myself. However, I haven't released any of Screechy's music at all. So if I see people sharing her songs, I can pursue them. And I've only released specific copies of Valium's work, so if I see a 256k version or a live version I can go after that, too, since it's nothing I've released.

How does the user know the difference? Well, good question. Honestly. But these sites purportedly exist for artists to share their music, and they are being victimized by the majority who upload music they have no rights to.

How does an average user know the difference today? How do I go on RapidShare and find freely licensed music right now and differentiate it from pirated music? Is there a "pirated" section and a "non-pirated" section and does everyone honestly use the sections? EMI could easily identify them if the site had a system for doing so, but how many pirates would mark their files as "authorized", too? It'd be like making a small non-peeing section in a large pool.

The fact is, if you want to know whether the music you download is authorized, you really need to go to the web sites for your chosen musician or their label. If their site points you to a torrent, then they've shared some music for your enjoyment. If you choose to use something like RapidShare, go ahead, but understand that there's no reliable mechanism for anyone to tell you what might or might not be legal for you to get.

Re:Make up your mind

[CastrTroy]

The default license on anything is copyright. Therefore, you are free to download it, but you aren't allowed to redistribute it, because that would be a breach of copyright. Similar to when you buy a book/cd/dvd. There is no license (usually??) but the fact that you bought the book only gives you the right to read, sell, or do anything else copyright allows. It doesn't give you the right to make 1000 copies and sell them on the street corner. There doesn't need to be a license, because copyright restricts what you can do already.

Re:Make up your mind

[clone52431]

That’s a mere technicality... they can’t catch you for downloading. So they can’t sue you for it.

They tried putting honey-pots on P2P networks, serving up fake files with filenames that made them look like copyrighted stuff. Then when people downloaded them, they sued. They lost. No copyright infringement occurred, because no copyrighted material was actually copied.

They tried putting the real files on the P2P honey-pots, then suing people for downloading them. That went even less well, since the people were downloading the files from the copyright holder, which makes it all perfectly okay – even if the people downloading didn’t know it.

They tried downloading their files from people, then suing them for making the copy... but that failed for the same reason. If the copyright holder asks you to make them a copy of their own stuff, you’re authorized to do it. Even if you don’t know they’re the copyright holder.

Finally they claimed that simply making the files available is proof positive that you were infringing on their copyright, based on the way P2P networks work. They can’t prove that you uploaded it to anyone, but they claimed that it was a statistical certainty that you had.

And they still can’t get you for downloading the file. For all they know, you could have downloaded it from a legal MP3 store such as iTunes.

Re:Make up your mind

[Amouth]

if i see a basket of fruit OUTSIDE the store.. with a sign that says TAKE or FREE on it.. someone had to put it there.. why should i be arrested if i do it? ESPECIALLY if the store put it there.

now you have the store.. putting it's files outside it's store with a sign that says download. again.. why should i be arrested if i do it? especially if the store put it there?

i understand your comment about the infringer has every reason to believe that what they are doing is illegal.. but downloading a file isn't illegal.. hell someone could post a file named one thing and you get something else.. how can you be responsible for that if you can't tell what it is till you get it?

now Crack is in all ways illegal.. and yes if your hunting for it you know your going for something illegal..

but if i put a song name in google.. and get 3 links.. one to amazon one to itunes one to rapid share.. which all happen to be posted by said company and all happen to have different prices.. then how the hell am i supposed to know?

Implied consent/contract...

[fuzzyfuzzyfungus]

To the best of my (layman's) knowledge, the area of what implies an "implied consent" or "implied contract" is often rather murky, and based on a mixture of precedent and judicial gut feeling, along with some patchy laws.

I would be pretty certain that EMI posting Song X to which they own the copyright to Rapidshare does not entitle me to (legally) redistribute it; but it seems like there might be a very good argument that it does entitle me to, legally, download it. If there is a location(a Freecycle depot or something) that operates under a large banner saying "Free stuff, take what you want, save it from the dump!" and I place a computer that I own in that location, I have to imagine that a reasonable man, in the legal sense, would conclude that I am thereby forfeiting ownership of that object(unless I can specifically prove that I was just carrying it, set it down for a moment to catch my breath, and somebody snatched it from beside my feet, or something similar).

Rapidshare, as its name would suggest, is basically an electronic analog of such a physical place. You put stuff there to distribute it(though, if memory serves, they might have some private distribution option for members). If a rightsholder knowingly and intentionally places material to which they own the rights in a place that explicitly operates as a medium for free dissemination, one would imagine that this amounts to an implied consent to, at least, free dissemination from that location. It doesn't clearly mean surrender of copyright, so it might not save those who re-disseminate it by other means; but it would seem to imply a licence to disseminate has been granted to rapidshare...

Obviously, IANAL; but I know that there are limits to what you can do without creating implicit, and binding, rights to for others. You can't mail somebody something without their consent and then invoice them for it, if you try, the thing that you mailed is a gift. If you put something on the curb, with a "free-take me" sign, you can't reasonably expect to charge the person who does with larceny...

Re:Implied consent/contract...

[clone52431]

No.

Re:Implied consent/contract...

[TheRaven64]

Maybe. To be allowed to upload it, they would need a license that permitted redistribution. In the case of RapidShare, this is probably not granted, even implicitly. If they had distributed the files via some p2p protocol, then it would be much harder to argue, because these protocols require peers to redistribute the work to function, so a limited redistribution license would be implicit (meaning a good lawyer would have a 50-50 chance of persuading a court that it was present).

Re:Implied consent/contract...

[u38cg]

Murky is not the right word. It is a very important area of law, for obvious reasons, and it depends (in common law systems) on several hundred years of case law. So it is complex, but also very well-studied. The main issue in a case like this is that it is not likely to be interpreted the same everywhere. So it's a damned stupid thing for them to do, but then decisions like that probably explain why they're in the situation they are.

Won't matter to the judge

[VShael]

Such blatant hypocrisy hasn't stopped the courts from siding with the corporations against the consumer in the past.

This is more about setting the precedent that piracy is wrong, not about the merits of this particular case.

Google vs. Rapidshare?

[Xacid]

This sounds awfully familiar to...oh wait, a story from yesterday!
http://yro.slashdot.org/story/10/12/02/2327227/Google-Loses-Street-View-Suit-Forced-To-Pay-1

Since EMI didn't *really* care about their music being distributed online they can win the case but only be awarded $1 in damages.

EMI Follows The Money

[blueZhift]

The big record companies won't do anything that the don't think is going to be profitable. So if EMI is indeed using Rapidshare to promote some of their artists' music, then there must be something to it. All of these years of arguing that piracy on sites like Rapidshare hurts their bottom line would seem to be contradicted. EMI is just following the money. If giving away songs ultimately helps sell more of them, then they will do it. Ironically, the pursuit of p2p lawsuits has damaged their reputation so much that they probably have to make songs look like illegal downloads to be attractive to their target market.

Rapidshare?

[KingAlanI]

Rapidshare? I tell ya, MediaFire is easier to use. ;)

Re:Come on guys...

[mp3michael]

The attorney is referencing a specific document that was produced in discovery by EMI. The attorney Mr. Gulia signed a declaration under penalty of perjury that it's true. The attorney could face severe penalties including losing his license to practice law if it's untrue. -- MR