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

[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

[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

[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.

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...

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.