MP3tunes has filed opposition to EMI's arguments about why the Sideload.com music search engine and MP3tunes' personal cloud storage are copyright infringing. We turned up some great new evidence like how EMI itself directs people to download free MP3s they have uploaded to Rapidshare, which they claim is a known piracy haven, and criticize Sideload.com for linking to. In another example we demonstrate to the court that a song they're complaining about is actually hosted on a EMI owned and controlled server. For the first time in a copyright legal battle videos were submitted and Youtube video responses were generated and are open for the world to view to determine for themselves if a music search engine and personal cloud music should be outlawed.

First, they complain about Hercules Theme, by retro-disco band Hercules & Love Affair. Remarkably this MP3 is located on a server controlled by EMI so if they didn't want anyone linking to it they could remove the file or add a robots.txt file. And of course you don't need a search engine to download the song. EMI Expert Ellis Horowitz USC Professor MP3tunes CEO Michael Robertson MP3tunes shows in our video response that Sideload is not linking to some clandestine location, but rather to a public location and that in fact Google offers links to stream and download the same song from the identical location. Next, EMI shows a video about how Sideload links to Buffalo Soldier by Bob Marley. EMI Expert Ellis Horowitz USC Professor MP3tunes CEO Michael Robertson In a video response MP3tunes shows how Microsoft's Bing and Google's search engine links to the same song in the same location. Finally, EMI shows a video of a link to "Every Breathe You Take" by The Police from Sugarbears.org. EMI Expert Ellis Horowitz USC Professor MP3tunes CEO Michael Robertson Again, the video response shows that Google and Microsoft have links to the same song and offer both streaming and download links right from their own server.

When EMI filed their lawsuit more than 3 years ago they claimed to never release promotional MP3s therefore every link in the Sideload.com music search engine was a copyright infringement. They also said that our secure personal cloud music service was making thousands, if not millions, of unauthorized copies of EMI songs. Astonishingly, today EMI has done a flip turn and are now complaining about the exact opposite behavior which illustrates why DMCA protection is required for internet companies since they will never be able to build technology which appeases the major record labels. They'll always be able to manufacture an argument about why a technology is infringing their works. In our case they are now claiming that MP3tunes doesn't make ENOUGH copies of their works - a complete reversal of their original claims.

In defense of the Sideload.com music search engine MP3tunes told the court that EMI promoted bands by distributing free MP3s online. EMI told the Judge our position was "pure fantasy" claiming that EMI never distributed free MP3 songs online. Thanks to our users we quickly amassed a list of more than 1400 such fantasy EMI songs that were available online and in depositions they finally admitted they put free songs online so they would spread "virally".

Confronted with these facts EMIs position changed and they're now saying that we're linking in the wrong manner or to bad places. They say we link to Rapidshare which they called a known haven of piracy. However we uncovered internal emails where EMI themselves put songs on Rapidshare and sent email to others instructing them to download them Rapidshare. Their experts grudgingly admit that it's impossible to tell which links are authorized and which are not.

These videos illustrate that Sideload is a search engine and thus eligible for protection under the DMCA. Because it focuses on music files does not mean it's less qualifying for protection than a Google or Bing - which in fact have identical links as is demonstrated by the videos.

Another argument less amenable to a video response is that MP3tunes because of our storage methodology is not making an optimum number of copies to satisfy the record labels. In this case, EMI is astonishingly complaining that MP3tunes doesn't make or keep enough copies on servers. (Yes, this is a complete turnaround from their original complaint filed more than 3 years ago!) However Congress had the foresight to recognize that "in the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability." They authored and passed the DMCA "limiting the liability of service providers... ensuring that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand." MP3tunes storage methodology are employed by every major internet company and probably most of the minor ones too. We do nothing exceptional and any complaint lodged against MP3tunes would have as much merit if lodged against Apple, Facebook, Google, Yahoo or any company offering online email or storage.

If you offer a service like MP3tunes which enables people to listen to their own music everywhere on any device, it will be impossible to appease the record labels. They'll always be able to claim you're making too many copies or too few simply because they don't want such a service to exist. It's as futile as trying to round pi - you'll always be too low or too high. This is why you have courts and these latest papers are an important milestone. There's one more set of papers due later this month and then oral arguments in late January after which we expect the Judge to pass down a ruling.

--MR
michael@michaelrobertson.com