the intellectual property and technology
group at Skadden, Arps, Slate, Meagher
& Flom. Still, she says, the law is far from
settled: “Cablevision is just one circuit.
I could see a court adopting the opposite
view. Just because they have 500,000 cop-
ies of the song on their servers, does that
really make a difference as to whether it’s
a public performance?”
The major music labels won’t comment
on whether they plan to sue Amazon and
Google over the music lockers. A top ex-
ecutive with one label who spoke on the
condition of anonymity, however, says he
expects Amazon to cut a licensing deal so
that it can offer a scan-and-match service
similar to Apple’s. Google is also report-
edly in discussions over the licensing issue.
If new litigation arises, it would join
a three-year-old lawsuit filed by an EMI
Group subsidiary against MP3tunes.com.
Unveiled in 2005, MP3Tunes.com lets
users upload music from their computers
into the cloud for streaming to any de-
vice, much like Cloud Drive and Google
Music Beta. MP3tunes.com also includes
a search engine called Sideload.com that
helps users find free music downloads to
add to their lockers. The EMI unit claims
the Web site is essentially a vehicle for
rampant copyright infringement and
should be shut down.
“You won’t see EMI go after Google,” says
one outspoken music industry critic, “because
Google can match them lawyer for lawyer.”
Michael Robertson, who has been an
outspoken music industry critic since
he was sued over an earlier venture,
MP3.com, which let users access digital
copies of music they owned on CD. In 1999,
with investors calling it the future of music, MP3.com raised $344 million at an
initial public offering. In 2000, federal district court judge Jed Rakoff granted partial
summary judgment to RIAA in its suit
against MP3.com. After reaching individual settlements with five music labels, the
company ultimately shut down.
EMI said the company should not be allowed to claim safe harbor because it has
allowed illegal downloads to proliferate on
its site and used the infringing copies as
“bait” to lure paying customers.
Manhattan federal district court judge
William Pauley III is to rule on the motions
later this year. In the meantime Robertson
doesn’t see the music industry suing the
big companies that have joined him in the
music-locker business. “You won’t see EMI
go after Google,” he says, “because Google
can match them lawyer for lawyer.” ■
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