Legal clarity is essential to break the digital-locker-licensing stalemate

With Google (and a few others) launching digital music locker services, Music & Copyright has updated a previous blog about this subject with a shiny new table (see below). In the latest issue of the newsletter we have a look at the digital locker sector and how all the uncertainty over licensing requirements is damaging an already fragile digital-music sector.

Google as well as many of the other locker-service providers, claim that they do not need a license to offer simple storage. Defender of digital rights the Electronic Frontier Foundation (EFF) agrees. It says that the Google service simply allows users to “upload a song you already own and access that file from different browsers and devices, not much different from transferring a song you bought to your iPod.” We don’t think this is strictly accurate. In the case of Music Beta, the availability of offline streaming requires the creation of a cached copy of an uploaded track. Should this copy be downloaded and stored on a separate device from the one used to upload the tracks, then a mechanical reproduction of the track has occurred and so some sort of fee that remunerates rights holders should apply. There is also the issue of private-copying remuneration if any locker service was to launch in a country that has in place a private-copying-remuneration system.

Clarity might come from the conclusion of litigation between EMI and MP3Tunes. MP3tunes was first launched by US digital-music pioneer Michael Robertson at the end of 2005. Two years later EMI filed a copyright lawsuit against MP3tunes and Robertson claiming that the outfit was encouraging people to pirate music via another Robertson vehicle, Sideload.com, and then stockpile those illicit tracks in the locker.

Oral arguments were heard in the case in February, and a ruling is expected in the coming months. Although the ruling will not offer complete clarity on the legality of simple locker services such as Music Beta and Cloud Drive, it may well provide some guidance to lift the current state of ambiguity. If it doesn’t, the music companies must either begin legal action against Google or Amazon, or make an unambiguous statement about what they deem is acceptable use of their content. The importance of this to the music industry cannot be overstated, especially if these simple locker services become popular.

Music & Copyright is a fortnightly research service published by Informa Telecoms & Media.

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One comment

  1. Thibs

    “Should this copy be downloaded and stored on a separate device from the one used to upload the tracks, then a mechanical reproduction of the track has occurred and so some sort of fee that remunerates rights holders should apply.”

    This may not be the case in the US, but in France among other countries, private copying levies apply to most blank media such as CD-Rs and -RWs, Hard Drives, Mini-discs, or MP3 players, to remunerate rights holders for the copies made by consumers. The system is managed by the SORECOP. In France the situation is now more about deciding whether servers dedicated to music storage (such as those used for Google Music or the iCloud) should also be subjected to these levies.

    Source (in French): http://www.copiefrance.fr/pdf_n20.pdf (Graph with all supports subject to levies)