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?

Comments

As I and many others pointed out yesterday

[elrous0]

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.

Now Amazon certainly has a better cadre of lawyers at its disposal than mp3.com did. And it has a lot more muscle with the industry (since it's once of the leading music retailers). But, even with that, this is still a stunningly ballsy move on their part. Hell, Sony sues people for even looking funny at their IP.

And, yes, I hope Amazon wins out on this. If nothing else, it would set a nice precedent for Google and Apple to open up their upcoming music cloud services in a similar fashion.

Re:As I and many others pointed out yesterday

[Anonymous Coward]

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.

Re:As I and many others pointed out yesterday

[bigstrat2003]

I would hope so. Streaming one's own uploaded music is nothing more than a specialized form of data retrieval. It's asinine to claim that Amazon cannot allow this.

Re:As I and many others pointed out yesterday

[Cheviot]

This is a different situation than my.mp3.com. In that case the website stored one copy of each piece of music, required the user to verify they owned it, then allowed you access to their stored copy. This was found to be actionable as they were allowing multiple people to download one master copy of a MP3, essentially repeatedly pirating that MP3.

Amazon is establishing a separate cloud drive for each user. If you buy a MP3 they copy it to your personal drive for you. They also allow you to upload your music to that drive. There is a separate copy of each song stored on the cloud drive for each user, and the only MP3s Amazon copies to the drive are legally purchased. As the user can only download what they have uploaded or purchased, no piracy occurs, at least on Amazon's part. Users may be storing pirated music on their personal cloud drives, but these are private file storage areas and do not allow MP3s to be exchanged among users, thus the cloud drive does not facilitate piracy.

Re:As I and many others pointed out yesterday

[MBGMorden]

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.

Re:As I and many others pointed out yesterday

[mclearn]

Actually, TFA states that if you purchase an MP3 from Amazon, it is automatically synced to their service. But other content will have to be uploaded, yes.

Re:As I and many others pointed out yesterday

[Anonymous Coward]

I would hope so. Streaming one's own uploaded music is nothing more than a specialized form of data retrieval. It's asinine to claim that Amazon cannot allow this.

"Asinine" is the record labels' established business plan AND profit model, you understand.

In fact, "Asinine" might actually be a record label.

Re:As I and many others pointed out yesterday

[chaboud]

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).

Re:As I and many others pointed out yesterday

[TheRaven64]

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?

1. I rip my CDs and play them, is this legal?
2. I stream the ripped music from my laptop to my hifi, is this legal?
3. I store it on a file server on my local network and stream it to whichever computer / device I want to use, is this legal?
4. I move the file server into a colo and stream it from there, is this legal?
5. I replace the dedicated server with a VM on someone else's system, is this legal?
6. I replace the dedicated VM with an account on someone else's system, is this legal?

None of these steps look like they would be illegal in any jurisdiction where format shifting is allowed.

Re:As I and many others pointed out yesterday

[FictionPimp]

Are they going to go after dropbox, jungledisk, or any other generic cloud storage people have been using to do this well before amazon thought about it?

Re:As I and many others pointed out yesterday

[caseih]

So... it's legal until Amazon starts running a dedup algorithm on their disks. Crazy.

Re:As I and many others pointed out yesterday

[Anonymous Coward]

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.

Re:As I and many others pointed out yesterday

[gstoddart]

You would store 100,000 different copies because storage is cheap, and you might not be able to get away with feeding me back Bubba's tiny bitrate rip of the song's chorus played over and over when I ask for the version I uploaded. Excepting, of course, copies that match checksum, file size, and meta data with the version sold by Amazon, maybe (even that sounds like a lot of work when storage is so cheap).

Well, the big storage vendors already have technology to do this. It's called deduplication.

Basically, the storage arrays do this themselves. They find files which are identical to other files, and then collapse them so that there is only one actual copy, but it looks to the individual users like they have their own copy. Unless someone edits the file, the same copy is shared across everybody.

In this case, it certainly wouldn't give you a different file at a different bit rate. It would only collapse files that are identical. So, you and Bubba wouldn't share the same copy of the file.

So, presumably, if you and I both rip files to MP3, there might be some differences. If you and I download it from Amazon, that is going to be a good candidate to remove duplicates.

As far as I know, that process happens in the background once you set it up, and it happens at the storage level of things. This is in use all over the place, and it certainly wouldn't be purely based off the file name.

Re:As I and many others pointed out yesterday

[Kjella]

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.

Ssssshhhhh!

[GameboyRMH]

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?

Don't give them any ideas!

Re:Ssssshhhhh!

[rufty_tufty]

Considering I remember a time when big music was trying to make MP3s illegal because they could be played indefinitely and not wear out as any other media would, then yes they tried to do that one already.
Fortunately they lost on that occasion.

Evolving case law

[Dachannien]

Amazon now has the benefit of CNN et al. v. CSC Holdings, aka the Cablevision Remote DVR Lawsuit, where the 2nd Circuit Court of Appeals ruled in Cablevision's favor and specified that, in part, the specific actions of the remote user instructing the remote DVR to record and play back the copyrighted material served to exclude Cablevision from liability. SCOTUS refused to hear an appeal on this, so other circuits might be inclined to agree with the 2nd Circuit.

There are probably some differences here (not knowing about the specific functionality of Cloud Player, I won't speculate), so it'll be interesting to see how far Amazon can push the envelope.

You need a license to sing in the shower!

[erroneus]

If you ask the RIAA what you need a license for, the short answer is "everything" according to them. They exist because they seek to claim rights to everything possible and expect people not to take the issue to court when they need an exception.

The RIAA and similar activities are criminal in my opinion as they are extortionists who routinely claim to have rights over materials they do not have rights to. If the RIAA is to persist, the government needs to hand down an exclusive list of what they can claim and the requirements on how to make claims... requirements such as proof the material being litigated over is actually covered by their "watch." Further, I think in order to assert copyright protection, the copyrighted materials should be registered with the library of congress formally and in an unprotected digital format. (They should at least pretend to honor the social bargain of copyright and eventual public domain.)

Re:Why that case should have failed.

[hedwards]

You didn't buy a license you bought a copy. CDs do not come with EULAs or ToS that dictate otherwise and I've never opened a jewel case and found such an agreement. Admittedly, it's been years since I bought anything from a major studio, but I doubt that much has changed.

Consequently, if that's how they view it and expect it to be treated, they'd be liable for all sorts of false advertising and fraud suits.

Re:I think ...

[hedwards]

I hear that if you say RIAA three times in a row in front of a mirror that the MPAA sues you for copyright infringement.

Some restrictions apply ...

[davide marney]

From the Amazon MP3 Uploader App Help page:

Files not supported by the Uploader

• DRM (Digital Rights Managed) files: DRM protects the number and types of locations that songs can be played from. Because of these restrictions the Amazon MP3 Uploader and Amazon Cloud Player do not support these file types.
• Non-MP3 and non-AAC formats: The Amazon MP3 Uploader and Amazon Cloud Player only support a select number of file formats. See below for a complete list of formats we support and a list of some of the files formats that we do not. To find out how to convert music into a file format we support, use your preferred media player.
• Over 100 MB: Uploading files that are over 100 MB in size is currently not supported. If you have music files of this size that you would like to add to Cloud Player we recommend you re-encode them at a lower bit rate to reduce the file size. To find out how to convert music into a file format we support, use your preferred media player.
• Miscellaneous audio types: Ringtones, podcasts, audio books, and other non-music audio files are not supported by the Amazon MP3 Uploader.
• Playlist without eligible music: Playlists that contain only files with any of the above problems or that contain no music are not eligible for Upload.
  The following is a list of supported file formats and some of the unsupported file formats. Unsupported files will not show up in the Uploader as they are not available for upload.

Supported file formats

• .mp3 -- Standard non-DRM file format (Includes Amazon MP3 Store purchased files)
• .m4a -- AAC files (Includes iTunes store purchased files)

Unsupported file formats

• .wma -- Windows Media Audio files
• .m4p -- DRM AAC files
• .wav -- Uncompressed music files
• .ac3 -- Dolby Digital audio files
• .ogg -- Ogg Vorbis audio files
• .ape -- Lossless Monkey audio files
• .flac -- Free Lossless Audio Codec files

It will be interesting to see how well Amazon stands up to the inevitable court challenges. For music purchased from AmazonMP3, they are certainly on very solid ground, since they can prove that the Cloud Drive user is the purchaser; if Amazon has the legal right to download you the MP3 you just bought, they certainly have the right to download it for you again. The music industry has already taken their (very generous) cut in that case. You paid for it, you get to use it.

Playing back non-AmazonMP3 files is where I think it gets a little sticky.

Putting Amazon.com vs. the RIAA into perspective

[zsazsa]

In 2009, Amazon's corporate revenues were $26.53B. For the same year, the entire RIAA's revenues were only $6.3B.

Amazon should be able to swat them down like a fly.

Re:Putting Amazon.com vs. the RIAA into perspectiv

[xbytor]

You forgot the $73 trillion that they'll be collecting from LimeWire.