Michael Robertson: Behind The Scenes


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Behind The Scenes - EMI Sues MP3tunes

On Friday, November 9, 2007 EMI sued MP3tunes. For those who don't know, MP3tunes is a service provider that offers a personal Music Locker and runs a search engine called Sideload.com. I thought I would share some background as this will be a very important battle for all search engines and jeopardizes the rights of music owners to store their music online and play it on all the devices they own.

The legal scuffle between EMI and MP3tunes began in September 2007 when, in a letter that accused MP3tunes of a wide range of illicit actions, EMI sent MP3tunes a specific list of songs it wanted taken down from Sideload.com. I promptly called EMI’s attorney and said we would remove the songs, but I reminded him that Sideload was simply a Google-like search engine, and had no actual files -- just links to song files hosted other places. I added that I admired EMI's progressiveness in selling MP3 files. (I use the new nifty AmazonMP3 store and my latest buys include Nickel Creek, Kanye Wes t, Telepopmusik, Robin Thicke, and I'm filling in my missing 80's collection with Loose Ends.) I also offered to work to make sure that Sideload helped meet EMI's business goals. The attorney didn't want to discuss that, and instead quickly demanded a "substantial sum for past infringement" be paid to EMI, insisting our company had violated copyright law. We definitely didn't see things that way and felt we were forced to file a lawsuit in San Diego asking the courts to declare our service legal. We sent a courtesy copy to EMI's legal representation.

On November 9th, 2007 EMI filed a lawsuit against MP3tunes in New York. I learned about it from calls I received late Friday afternoon from Dow Jones, Reuters, and Bloomberg. (Filing late on Friday is a common tactic to make sure the other side has little/no time to comment.) I indicated I couldn’t really comment on the lawsuit against MP3tunes since I hadn't even read it. Several reporters observed that MP3.com, a company I founded in the late 90’s, had also been sued by a major record label. MP3tunes and MP3.com are very different, as are these cases. I added that I hoped the press would keep an open mind and look at the underlying issues.

EMI's lawsuit complains both about Sideload.com and the personal Music Lockers offered by MP3tunes. Sideload is an audio search engine. It has links to audio files and shows you where those files are on the net. Sideload does not host any files. There are many, many such search engines. Here are just a few, with the same starting letter “S” as Sideload: Songza, Seeqpod, and Skreemr - all of which are probably much bigger than Sideload. Many people simply use Google, which is likely the biggest audio search engine in the world. Any complaint against Sideload could be leveled against Google, Yahoo, MSN, and Ask since they all have links to song files.

EMI also complained about MP3tunes' personal Music Lockers. We provide individual Music Lockers designed to store a user's own music collection securely online so you can listen to your music collection anywhere you want to. As an example, when I buy songs at work from AmazonMP3, they are automatically loaded to my personal Locker so I can listen when I get home or even on my net radios. My vision is that in the near future people will have music players built into every piece of electronics they own, and they will all be connected to the Internet (at least some of the time). Our goal at MP3tunes is to provide a system that will let you access your personal music on any device you own. Our implementation is responsible, with password protection required for each Music Locker. You can't listen to or download any songs from my Locker or anyone else's -- it's password protected and utilizes the same security provisions used by most online services such as online banking. If it's good enough for your money, I think it's good enough for your music. Of course, there are services online that people use to swap music -- they typically allow anyone to copy anything they like with no user names or password requirements. These are very different from MP3tunes.

While the lawsuit says "EMI" I think the RIAA is advocating this legal fight as much as any individual label or entity. The RIAA is the music industry's association with a focus honed on suing seemingly every new technology that comes along (this last decade at least) . This is what happens when you have a staff of attorneys -- they want big, long legal fights so they can bill their clients. The problem with suing every new technology and/or company is the opportunity to use that new technology in a positive manner is lost. For example the RIAA sued the first portable MP3 players. The RIAA lost -- not just the lawsuits, but the chance to leverage an exciting new technology (MP3 players). It also lost the ability to partner with innovative companies for increased sales and revenues. By suing every new technology, the music industry is missing the opportunity to use innovation to dramatically grow its business in exciting new ways.

Early articles covering the dispute have referenced my previous company, MP3.com. MP3tunes has no relation to MP3.com and this is a very different situation, but you might find it interesting to know more about that incident. At MP3.com I invented Beam-It and Instant Listening as part of a system called my.mp3 (MP3.com had an incredible engineering staff that took my rough ideas and made brilliant technology). The concept was to modernize the audio CD and move it into the digital age. Many people at the time, such as those at LiquidAudio, were talking about doing $1 song sales (no, Apple didn't invent that idea). If people stopped buying CDs and instead bought $1 songs, it was easy to predict industry revenues would crater -- I created Beam-It as a digital solution. You could take an audio CD, insert it into your computer and in seconds have the songs in your personal my.mp3 account for listening. With Instant Listening, you could buy a CD online and immediately have all the songs in your my.mp3 account for your personal listening pleasure while you waited for the CD to be shipped to you. For the two months Instant Listening was activated, retailers that used it experienced sales boosts of 40-60 percent. The only way to get music into your password protected my.mp3 account was to own the actual CD making the CD intrinsically more valuable. If the music industry would have adopted this technology, it could have extended the life of the CD another 10 years. But, it chose to sue MP3.com and missed a golden opportunity -- CD sales are down a staggering 60 percent since that time. While MP3.com may be an interesting footnote in digital music history, MP3tunes is an entirely different company with different technology.

By attacking the Music Locker, EMI is attacking the right to personal ownership of digital property. I believe people should be able to listen to their music anywhere they want, and on any device that suits them -- this is why we buy it. Most people are not going to have the time or technological know-how to move the music they own from their PC at work to their PC at home, or from their PC to their devices (mobile phone, Internet radio and more). In this Digital Age it will be necessary for people to direct a service provider like MP3tunes to store their music for them, and to provide simple yet secure ways to access it on every device they own. I want people to legally acquire their music, and once they do I think they should be able to listen to it everywhere.

If you can't store digital music you own in a personal online account, then your rights to all other digital property like movies, photos, e-books, medical records, etc can be challenged. Nobody wants to be involved in a lawsuit, but you have to be willing to stand up for what you think is right in this world. Digital ownership is an important consumer right, and I am committed to doing everything I can to defend it. I'll try and keep you apprised of future developments. Thanks for your support.

-- MR

View the lawsuit documents here: