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Amazon's Cloud Player: We Don't Need a License
halfEvilTech writes "Amazon has launched Cloud Drive and Cloud Player without securing streaming licenses from the music industry. But does it need to? Amazon says 'No.' The music industry? 'Yes.'" Do I need a license to stream MP3s from system RAM to the MP3 player? From my hard drive to RAM? From my file server to my machine?
My.MP3.com tried out a similar argument years ago, and it cost them a $53 million lawsuit (which bankrupted them). And in many ways this is even worse. MP3.com at least required you to prove you actually owned a disc before you could stream it. Amazon will let you upload ANYTHING (pirated, ripped, bought--makes no difference) and stream it.
That is exactly why the Amazon service looks like it might stand up legally. The user has to upload the content rather than it originating from a central source. This may seem like a subtle distinction but it changes the legal standpoint massively.
How they see it in non-important in the end though. They've already made their position clear on the matter. What matters is whether or not they can convince a court that they are being illegally harmed. That's often a whole different reality than how a party wants to "see" an issue.
"People who think they know everything are very annoying to those of us who do."-Mark Twain
You need to read up on the DMCA Safe Harbor provisions. ISPs and hosting providers are *not* responsible for the content pushed to them by users. Besides, it's a private, per-user setup.
What about the content that you put on Sky Drive? In GMail? in regular email? On your ftp server at your hosting provider?
It is not the responsibility of ISPs to audit and police every bit that passes over their equipment. Simple common sense and the law both agree with me (a rare gem in itself).
There are differences between taking your bought and paid for music collection and putting on a file server you own, and streaming your own music to your devices
Where does the difference start?
None of these steps look like they would be illegal in any jurisdiction where format shifting is allowed.
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So... it's legal until Amazon starts running a dedup algorithm on their disks. Crazy.
What matters is whether or not they can convince a court that they are being illegally harmed.
That shouldn't be too hard, since the judge that will hear the case will probably be a former RIAA lawyer.
You could even calculate a hash before uploading, and skip the upload if the file is already somewhere in the cloud.
No, this is exactly what you can't do and what killed mp3.com. As pointless as it sounds to a computer scientist, it matters where the bits came from. They must come from YOUR copy, not someone else's copy and not some central master copy.
For example, I could have a hacked client that only passes you the correct checksum values, and suddenly you give me access to lots of files I don't have. How did that happen? Oh, Amazon committed copyright infringement. In fact, no matter what it's copyright infringement because they rely on borrowing your fair use rights. Since your fair use rights don't involve taking a copy of someone else's CD, neither do theirs.
The only way Amazon is safe is to let you access exactly what you uploaded, no more and no less. They can probably get by with deduplication as long as a skilled expert witness explains that everyone still have to upload their own copy and that it's simply a storage optimization. Anything else just crosses the border from ballsy to insane.
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