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MP3Tunes 'Safe Harbor' Court Challenge Approaching 94

Posted by kdawson
from the no-friend-of-yours dept.
markjhood2003 sends along an update on a story we first discussed two years back: EMI's lawsuit against MP3Tunes on the claim that cloud storage of music is illegal. The case has gathered importance as cloud computing has grown in capability and acceptance. Opposition briefs in the case are due on Wednesday and oral arguments will start in January. EMI is making the unusual move (the opposition calls it "desperate") of insisting that the EFF's friend-of-the-court brief not be accepted. "EMI says the brief filed last week by the Electronic Frontier Foundation and other groups supporting MP3tunes’s argument that it’s not responsible for what music its users store on its servers should be barred because it is 'a pure advocacy piece, not a "friend of the court."' Amicus curiae briefs are often filed by interest groups and the government in cases that could set major precedents, in order to illustrate the broader ramifications of the case. ... After three years of litigation, EMI argues that EFF’s brief is too long, thereby 'circumventing' the court’s 'page restrictions' causing 'additional burden' to the court and “prejudice” to the EMI. ... In addition, EMI says, EFF’s brief 'contains unsupported speculation that is not helpful to the Court.' Anyone can submit such a brief as long as they’re not a party to the case, and judges have full discretion whether to accept them. They almost always do."
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MP3Tunes 'Safe Harbor' Court Challenge Approaching

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  • Enough Already. (Score:3, Insightful)

    by BigSes (1623417) on Tuesday November 23, 2010 @07:27PM (#34325022)
    Sigh.
    • Re: (Score:1, Funny)

      by davester666 (731373)

      Sorry, but you only licensed that file. And the terms of that license do not permit you to give it to another company to stream it back to you.

      • Define "file". If you use a RAID system you're already storing more than just a string of bits. What about if this "file" is on local network storage - are you allowed to copy chunks of it to your local hard drive while it's playing? And then into memory - that's another copy.. ker-ching!

        A file is an abstract concept - it makes no practical difference - and should make no legal difference - whether it's in the cloud, on your local computer or somewhere in between, or all of those places at once. All that ma

        • Re: (Score:3, Interesting)

          by SuricouRaven (1897204)
          You can play interesting legal games with this. The OFF System p2p, for example, allows you to download a potentially infringing file without ever actually downloading any of the data within - only completly random data. Twice as much as in the file you want. But, if XORed in the correct way... out comes what you really want. It's billed as a p2p network that's completly legal, unless you assemble the files at the recieving eng (Which, of course, can't be easily detected by an observer). I doubt it'd stand
    • Sorry... i hold copyright on 'Sigh.'
      Storing it on the /. cloud is not permissible.
  • by presidenteloco (659168) on Tuesday November 23, 2010 @07:31PM (#34325066)

    Physical location of information storage is irrelevant.

    What matters (and what should matter legally) is who has control of
    and access rights to the information. That is the person who is
    in possession of the information and determining its disposition.

    Whether a person chooses to manage their personal or personally owned
    information on a local hard drive, a usb stick, or a rented chunk of the
    cloud ought to be completely irrelevant.

    If law is going to rule on uses of internet architecture, law had
    better understand fundamental concepts of internet architecture,
    such as virtual private networks and idependent security realms.

    • Re: (Score:1, Funny)

      by Anonymous Coward

      And you
      should under-
      stand how the
      textarea func-
      tions.

      • Research on reading typically comes up with results like the following
        (google it for more details)

        - Longer line lengths generally facilitate faster reading speeds.

        - Shorter line lengths result in increased comprehension.

        - The optimal number of characters per line is between 45 and 65.
            (some studies say 66 to 70, but you get the point.)

    • by girlintraining (1395911) on Tuesday November 23, 2010 @08:43PM (#34325756)

      Attaching data to a medium which cannot be duplicated and degrades over time is the cornerstone of the entertainment industry's business model. Cloud computing, networks, and any other form of data duplication and replication is therefore its natural enemy.

    • Re: (Score:3, Insightful)

      by Locke2005 (849178)
      If we accept EMI's argument, then all of the online data backup services are also facilitating copyright infringement and should be shut down. Microsoft's latest buzzword is "the cloud", why haven't they filed an amicus brief?

      And by the way, how the fuck can anyone object to an amicus brief? Wouldn't doing so just result in dozens of similar organization filing essentially the same brief? I assure you, EMI, we can file 'em faster than you can object to 'em!
      • Re: (Score:3, Funny)

        And by the way, how the fuck can anyone object to an amicus brief?

        "The water's rushing in! Throw this sandbag on it!

        "That's no sandbag, that's a baby!"

        "It's a sandbag. Throw it on the pile and I'll get another".

        The tactic relates to removing your opponent's argumentative ammunition, by any means. If they have a devistating argument, all the more reason to try to get it thrown out. Nice, or Right, doesn't enter into it.

    • by Kvasio (127200)

      Physical location of information storage is irrelevant.

      good luck in getting US court decisions executed regarding data stored in North Korea, Cuba or Venezuela.

    • Unfortunately, there is a big flaw in your reasoning.

      Courts have ruled, that anytime you had your information over to a 3rd party, it isn't subject to constitutional protections preventing search and seizure -- based on the the theory that 3rd party's are not 100% trustworthy.

      Based on that, if you store something in the cloud -- courts have already ruled that it's NOT your private stuff anymore -- so theoretically, 'anyone' could make a copy, though most obviously anyone in the employ of the 3rd party (a mu

      • by tibman (623933)

        You don't store stuff in the cloud in plaintext form. You encrypt it.

        Let them copy all they want. The cloud is supposed to offer storage and backup, not copy protection.

    • What matters (and what should matter legally) is who has control of and access rights to the information. That is the person who is in possession of the information and determining its disposition.

      Possession is irrelevant in copyright issues. It has never been a violation to possess a copy of something. It has been a violation to distribute a copy.

      In this case the claim is that the service can be used to distribute copyrighted information. If it can be shown that a primary use of the service is to share the music between multiple "entities" then MP3Tunes is pretty much hosed.

  • Whats the difference between could storage and traditional storage? Buzzwords, and possibly their synergy.
    • Whats the difference between could storage and traditional storage? Buzzwords, and possibly their synergy.

      Who cares about buzzwords? The only thing I care about is...is it green?!

      • Re: (Score:3, Funny)

        by MaskedSlacker (911878)

        The only thing I care about is...is it green?!

        And does it give blowjobs?

      • Whats the difference between could storage and traditional storage? Buzzwords, and possibly their synergy.

        Who cares about buzzwords? The only thing I care about is...is it green?!

        Yes actually, it's on SUSE!

      • by residieu (577863)
        I store my data in the back of a hummer. And yes, the hummer, and the disks, are both painted green. I'm doing my part!
  • EMI expands scope (Score:3, Insightful)

    by guyminuslife (1349809) on Tuesday November 23, 2010 @07:39PM (#34325154)

    In their next case, they'll contend that not only are users breaking the law when they store their music on a hard drive they've rented, they're breaking the law when they store their music on a hard drive they've purchased. And of course, when I say "hard drive" I mean a "storage device," such as a flash drive or an optical disk. In other news: EMI pushes for a return to vinyl records.

  • As long as it's not publicly accessible (and therefore promoting infringement), how could they construe storing files on a private location to be illegal? Insanity.

    So - storing your own CDs in your house - acceptable. CDs in your car, illegal (because you can play the CDs at various residences)?

    Anything to protect that dying model. It would almost be humorous, if it wasn't sad.

  • I was wondering what services specifically an unfavorable ruling would affect. Would it affect websites like Pandora or would it harm services like usenet or would it affect file sharing sites?

    • It seems like it could affect GMail and online backup sites, the argument against MP3Tunes is that letting people store their files in online password protected storage is analogous to making illegal copies. It would be crazy if GMail scrubbed all of my attachments or Carbonite checked my online disks to make sure that I didn't have copyrighted materials. This judgement would not affect Pandora or Usenet.
  • ...from the bottom up. Simply put, the extant laws and the interpretations thereof are no longer valid for the changes that digitization have brought on. This revision has been needed for many years now, and the record industry's insistence on maintaining outmoded and obselete restrictions is a direct result of their inability to innovate a way to make a profit outside of their old model.

    I see no reason why the *AA should stifle creative expression because they're unable to continue making a profit on bug
    • Re: (Score:2, Insightful)

      by Bucky24 (1943328)
      I agree that copyright law needs revising, but I have yet to see someone suggest a decent alternative that benefits both the consumer AND the producer of the consumed good.

      Remember, despite all their flaws, the copyright laws we have today did and still do serve a purpose. They keep people from stealing ideas. They work wonderfully for solid non-digital things, like the thousands of goods we buy in stores-its only when we try to apply them to electronic data and ideas that we start having problems.
      • by Locke2005 (849178) on Tuesday November 23, 2010 @08:57PM (#34325876)
        The concept of "stealing ideas" is flawed. Ideas occur independently and simultaneously to many people when the conditions for that idea are right. And virtually every copyrighted work is derivative... can anybody cite a single movie Disney ever published that was based entirely on original characters and story line? Copyright monopolists have argued that libraries should be illegal, audio tape should be illegal, and videotape should be illegal. Now they are arguing that cloud storage of data should be illegal. I expect this argument to have much the same result as the previous ones.
        • by BBrown (70466)

          There is nothing in copyright law that prevents two people from independently copyrighting ideas they have written down. It doesn't even have to be simultaneous; just independent and without obvious copying or access.

          You may be confusing copyright with patent.

        • by girlintraining (1395911) on Tuesday November 23, 2010 @10:13PM (#34326424)

          Actually, the whole of human understanding is inter-related ideas. No idea can stand in isolation from any other. However, reality has little bearing on how the judiciary process works. In fact, an argument could be made that it can function in the absence of any grounding in reality. For that matter, the same can be said of society in general. One of the cornerstones of our society is the idea we can own land. We have entirely artificial barriers that we've interposed between ourselves and our physical environment. I cannot walk outside, point to a random spot on the ground, and prove a relationship between it and anyone else based on what my senses tell me. Nonetheless, this artificial social construct of land ownership is an intrinsic part of our daily lives. Society would not function without it. I couldn't force you to leave "my" home if you were not welcome, businesses could not develop the land because the next day somebody else might come and knock down their building, etc. Land ownership, however artificial, does serve a purpose.

          Intellectual property too has become an intrinsic part of our daily lives -- and it is also as artificial of a social construct as land ownership. And the courts' job is to uphold social constructs and maintain the status quo... not debate the merits of said constructs.

      • by UnknownSoldier (67820) on Tuesday November 23, 2010 @09:34PM (#34326138)

        > They keep people from stealing ideas.

        How do you "steal" an intangible??

        To quote a famous insight...
        "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

        The concept of Imaginary Property is absurd to begin with ... I have a sequence of numbers, yet somehow magically it is "owned" by someone else because it just so happens these numbers represent the frequencies of Happy Birthday. EMI can go fuck themselves.

        Copyright is eventually going away in a few hundred years, whether they like it or not, and maybe we can get onto more important things instead of arguing over who "owns" what particular sequence of numbers.

        The Fashion Industry has no copyright at all yet it still "magically" makes money ...
        http://blog.ted.com/2010/05/25/lessons_from_fa/ [ted.com]

        --
        "Resistance of the Future is Childish"

        • by tehcyder (746570)

          The Fashion Industry has no copyright at all yet it still "magically" makes money ...

          That's because they are very hot on trademarks/branding. Try copying a Chanel bag and selling it as Channel and see how far you get.

          • Try selling an exact replica of the Chanel bag and giving it a different name and it will still sell very well and make money. Especially if you make it cheaper since they are not paying for the brand name. However, this will not eat into the profits of Chanel. Thus, a perfect example where copyright is unnecessary. A model that others should follow.
      • by poopdeville (841677) on Tuesday November 23, 2010 @11:45PM (#34327094)

        I agree that copyright law needs revising, but I have yet to see someone suggest a decent alternative that benefits both the consumer AND the producer of the consumed good.

        A strong case can be made that copyright is just not working for its intended purpose.

        Consider that the US Government alone spends 20+ billion dollars a year on pure science and scholarly research. And that copyright actually stifles the movement of the ideas these dollars are supposed to promote.

        20+ billion dollars is worth 2000+ 100 million dollar movies. Hollywood doesn't make that many. If we're being generous, they spend about 3 billion on 300 "blockbusters".

        17+ billion dollars is worth 17000 1M dollar (to produce!) albums. I only know of one "one million dollar album" (I'm sure there are a few out there...). But realistically, call it 170000 "100 thousand dollar albums". The music labels do not make 170000 albums in a year. Let's call it... 3000 albums a year. That's another billion dollars.

        We have 14+ billion left. Television costs about 1000$ a minute to produce. That means that the remaining science budget is worth about 14000000 minutes of television. That's worth about 26.61 years of television, produced every year. How much of what is on cable is a re-run? How much is pretty much worthless after it first airs -- (Like the news)? The figures I've seen suggest that about 1.3 billion dollars were spent on producing new television in 2006. Lets call it 2 billion today.

        We still have 12+ billion left. How many books is that worth? Writers are notoriously poorly paid, at about 5c a word. Lets triple that, to pay editors and publishers' administrative staff. That comes to 80 BILLION words a year. An average book is about 120,000 words, which means that the remaining science budget comes to 2 million books a year. Publishers don't put out anywhere near that many books, and a large number of the books they do put out is paid for out of the science budget anyway. Let's call it 100,000 books a year. That's 1.8 billion dollars a year.

        We still have 10+ billion dollars left in the science budget. Of course, there are many other kinds of productions. And yet, these largest four or five dwarf them.

        Clearly, science costs DWARF the entertainment industry's production costs. And yet we are tying the hands of the people we have chosen to promote for the sake of the minority, few of which have anything to do with "useful arts and sciences" anyway.

        Copyright is rent seeking, and should be abolished (or at least curtailed) as such.

        • by dkf (304284)

          20+ billion dollars is worth 2000+ 100 million dollar movies.

          You fail by an order of magnitude. Two thousand times $100M is 200 billion dollars. (This leads to a critical failure in the rest of your argument, I'm sorry to say, despite my wanting to agree with it.)

        • by Eskarel (565631)

          And all the government funded science in the world doesn't give you one piece of music that touches your soul, one piece of art which moves you, or one story you'll never forget.

          Government funding certainly has its place, it allows for the creation of ideas which won't be profitable for decades if ever. The internet would not exist if it had been left to private enterprise. That doesn't mean that science is everything that copyright is designed to promote, or that we'd be better off without it.

          • And all the government funded science in the world doesn't give you one piece of music that touches your soul, one piece of art which moves you, or one story you'll never forget.

            And? I didn't say that the private entertainment industry should be abolished. All I said is that their rent seeking should be abolished. http://en.wikipedia.org/wiki/Rent_seeking [wikipedia.org]

            Government funding certainly has its place, it allows for the creation of ideas which won't be profitable for decades if ever.

            That is also the point of

      • "Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces
      • by russotto (537200)

        I agree that copyright law needs revising, but I have yet to see someone suggest a decent alternative that benefits both the consumer AND the producer of the consumed good.

        That's because no such proposal can do so. It's not zero sum, but the producers have to give somewhat for consumers to get anything. Instead, they've been squeezing the last drops out of the consumer.

        Remember, despite all their flaws, the copyright laws we have today did and still do serve a purpose.

        Sure. Whether it's a purpose which n

  • by euphemistic (1850880) on Tuesday November 23, 2010 @07:47PM (#34325234)
    32 whole pages including cover page, table of contents and submission credits at 1.5 line spacing? And people accuse Gen Y of having a short attention span... I'd have to agree that EMI are scraping the bottom of the barrel for reasons.
  • EMI's argument is, in part, that the EFF brief is tl;dr? Sounds like they're getting into internet culture after all.
  • Self Ownage (Score:2, Insightful)

    by paxcoder (1222556)

    If I were a judge here, and were talked out of reading a FOTC letter, I'd just be more interested in reading it.
    Weather forecast for the upcoming years: Increase of music in the troposphere.

  • ... just some boring pre-trial lawyering...
  • You might want to try googling the phrase "Streisand Effect"! Much like censored books and records enjoy greater sales, any brief you object to just gets a lot more interesting...
  • by Jumperalex (185007) on Tuesday November 23, 2010 @09:32PM (#34326110)

    So why does it matter where it is stored, who stores it, blah blah blah.

    If all I have purchased from the record companies is a license to the music, then isn't all that matters is that the person accessing the cloud has a license? Doesn't that license entitle me to certain listening rights.

    Or to put it another way, isn't MP3Tunes.com responsible for doing nothing else beyond ensuring I have a license for the music they are serving me? Isn't a reasonable method for discerning that fact my ability to upload a copy of that music?

    There are two scenarios: either I uploaded a licensed version so now STFU. Or it is an unlicensed version and as such MP3Tunes still isn't facilitating since they aren't the ones that gave me the unlicensed version in the first place and oh yeah BTW I already have an unlicensed copy so the battle is lost. No one else is "getting" that unlicensed version since the only reason they even have access via the cloud is because they already uploaded a licensed version or [drum roll please] they already are in possession of, and uploaded, an unlicensed version.

    • Re: (Score:3, Informative)

      by Solandri (704621)

      If all I have purchased from the record companies is a license to the music, then isn't all that matters is that the person accessing the cloud has a license? Doesn't that license entitle me to certain listening rights.

      That's why this thing is so screwed up. Hardware manufacturers sell a product. Software manufacturers sell a license. The RIAA/MPAA have deluded themselves (and gotten a bunch of laws passed supporting them) that they are selling something which isn't quite a product and isn't quite a lic

      • OH yes, make no mistake none of that is lost on me. I suppose my point is, make them choke on it >;-)

  • EMI says says the brief . . . should be barred because it is "a pure advocacy piece", not a 'friend of the court'

    Amicus Curiae does not mean impartial. It never has. Amicus curiae briefs may come from organizations who have an interest in the outcome of the decision or not. From wikipedia: "An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it." In its brief, the EFF (and other organizations) pointed out how flaws in EMI's arguments and how a win by EMI would be counter to what

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