January 6th, 2009

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Open letter to:

Doug Merrill
President Digital Strategy, EMI
dcm@emimusic.com

Since you haven't responded to my phone calls or emails, I thought I'd resort to the most public of connection methods. I think you're already aware of this, but just for some background, your employer EMI is suing my company MP3tunes for the music locker service we have built so music fans can store all their music online and listen anywhere. (Xbox support coming soon!) They're also suing us for our search engine Sideload.com. And, while they haven't mentioned it yet, I imagine they won't like Sideload's close cousin Tuneroom - the first mobile phone music search engine. There are no files on Sideload/Tuneroom just links to publicly available files. In notices sent to my company and filings with the court, EMI attorneys have said that no EMI files are authorized to be searchable at Sideload and we can't offer music lockers.

I believe the lawsuit was filed before you began at EMI, but since your employment, I'm sure you have come to learn that EMI widely distributes free MP3 files. We recently gave the court three categories where EMI distributes promotional songs for your artists:

– Through promotional music sites like Amazon, Spin, MTV, and online blogs. I listed more than 100 sources from EMI's original takedown notice which fit this categorization. See my declaration for a complete list.

– On many of EMI's own web sites. (See list of sample links below.)

– Via CDN (content delivery networks) that EMI pays to distribute MP3 files. (See list of sample links below.)

I applaud EMI's progressiveness for widely distributing some music files for free on the net. (A decade ago I wrote an editorial about how the record labels could create a top 50 web site by rotating a few full length songs for free download each day - which you should still do!) But what concerns me is the hypocrisy of EMI suing my company for linking to those files and giving people secure, password protected online storage for their personal music collection for both free and paid DRM-free files EMI distributes.

I've heard glowing reports from many who know you (and your blog is as heartfelt as I've read on the net). I apologize for the ingenuousness of my forthcoming questions, but I feel compelled to ask since you are the head of digital strategy for EMI:

• Do you think consumers should have the right to store their music collection online?
• Do you think online storage is illegal?
• Since you previously worked at Google (and they have many millions more MP3s listed in their search engine than Sideload) did you consider that an illegal service?
• Should Google be shut down?
• Do you condone EMI's legal assault on MP3tunes?
• Do you think that Sideload is illegal and should be shutdown?

MP3tunes recently told the court that EMI distributes a massive amount of music for free on the net and their actions against us are simply meant to harass MP3tunes and drive us out of business. "All that's necessary for the triumph of evil is for good men to do nothing." (Edmund Burke) From your blog you seem like a good man. What EMI is attempting to do to MP3tunes is evil. Online music storage is both protected under the law (DMCA 512-C) and a natural progression of cloud services and technology. Furthermore MP3tunes has always run our service in the most responsible manner with the tightest security of any online storage service on the net.

As President of Digital Music for EMI, I would ask you to closely examine our situation. If you agree with your employers stance, then have the courage to defend it publicly by responding to my questions publicly or privately. If you disagree, then I challenge you to do something to halt it so we can focus on our business without interference.

Michael Robertson
CEO, MP3tunes
michael@michaelrobertson.com

Some Links from EMI's own web sites to free MP3 tracks:

• Vincent Vincent and the Villains, "I'm Alive " (EMI Chrysalis)
  http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3
• Aesop Rock "Ghosts of The Barbary Coast" (EMI's Definitive Jux Records)
  http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html
• Goldenhorse, "Don't Wake Me Up" (EMI's Siren Records)
  http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3
• Sparklehorse, "Shade and Honey" (EMI's Parlophone Records)
  http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeandhoney.mp3&DOWNLOAD=1
• Chris Taylor, "Take Me Anywhere" (EMI's Bec Recordings)
  http://www.becrecordings.com/christaylor/1.mp3
• Michael Andrews and Gary Jules, "Mad World" (EMI's Mute Records)
  http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3

Links from CDN (content delivery networks) that EMI pays to distribute MP3 files.
Note "edgeboss.net" is the domain name for Akamai, the CDN that EMI pays to distribute its music, for free, over the Internet. Just before that, "capi001" reflects that EMI's Capital Records has an account with Akamai for music distribution.

• Katy Perry, "U R So Gay" (EMI's Capitol Records)
  http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3
• Lil' Ru, "Don't I Look Good" (EMI's Capitol Records)
  http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_look_good_cl.mp3
• Beastie Boys, "Car Thief A Capella" (EMI's Capitol Records)
  http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thief_A_Cappella.mp3?ewk13=1
• Doves, "Sky Starts Falling" (EMI's Capitol Records)
  http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skystartsfalling.mp3
• Seth Lakeman, "King and Country" (EMI's Relentless Records)
  http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and_country_128k.mp3
• XX Teens, "Darlin Original" (EMI's Mute Records)
  http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3
• Moby, "Moby Last Night" (EMI's Mute Records)
  http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3