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January 28th in courtroom 11D in New York City at 11:30am the final showdown over music lockers will take place in EMI v MP3tunes. After a lengthy 3 year battle all the witnesses have been deposed (some multiple times). Mountains of papers and rebuttal papers have been filed. The only remaining step is oral arguments where both sides get to hear comments and questions from the Judge and maybe gain an indication of how he views the case.
Over the past few months, supporters have become vocal for both parties. First a friend of the court brief was filed by Public Knowledge, EFF and CEA for MP3tunes. EMI objected to any third party briefs but the Judge allowed it. EMI then asked industry associations to support their position. ASCAP and MPAA filed briefs in support of EMI. Finally Google submitted papers in support of MP3tunes. Again EMI protested asking the Judge to disallow Google's support. Objecting at every step is a strategy EMI has deployed since the outset. Each time they object it forces MP3tunes to have to respond to the court which costs money and drags out the process. Many young digital music companies have conceded legal battles with international music giants simply because they ran out of money and not on the legal merits.
At stake in this case is whether a corporation can store digital assets for a consumer for later access. If that sounds exactly like what hundreds of video, photo, music, file and even email services do that's because it is. While MP3tunes deals primarily with audio the principles apply to other media. If it's illegal for MP3tunes to store music files on its servers then it's illegal for Google to store music files in its servers too - even if they're email. And since nearly half of all files in backup services are MP3s than services like Mozy, box.net and Carbonite would be illegal as well not to mention the movie, photo and ebook services.
A Sony Music executive recently said that personal music lockers have "very shady legal basis". I'm not sure legal criticism from the company who tried to secretly install software to control your PC triggering a class action lawsuit (rootkit), been involved in multiple anti-trust actions include price fixing, and who's artist accounting is under constant criticism and lawsuits has much credibility. Ultimately it doesn't matter what Sony thinks only what the law says and I believe the law clearly allows personal music lockers, "A service provider shall not be liable for monetary relief.....for infringement of copyright by reason of the storage at the direction of a user."
I expect a full courtroom of interested parties to attend this hearing. The Judge will not be deciding the winner or loser but I expect him to pepper both sides with questions. Those questions may provide insights into the eventual outcome of the case. Legal experts have told me to expect a ruling in April-August time frame. YouTube's recent triumph over Viacom for their video storage service gave me hope that courts are understanding the technology and, since MP3tunes' defense is similar to YouTube's defense, I'm even more optimistic.
If you're in New York I invite you to the hearing to see history being made since however the Judge rules it will shape consumer rights over digital property for years to come. I'll of course take good notes and report what transpires.
--MR
michael@michaelrobertson.com
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