Barely Legally

Confessions of a Moot Court Bailiff

Cloudy with a chance of lawsuit

The much-smarter-than-me Nilay Patel on the Amazon Cloud Player and the coming round of “music locker” services.

A new type of music service has got the music labels in a tizzy — they say Amazon isn’t licensed for streaming, and talk of lawsuits has already sprung up, as has a perception that Amazon legally over-extended itself with the service. That perception has only been heightened by word that Amazon and Sony are now negotiating, and there’s already some bad precedent for Amazon — MP3.com lost a lawsuit over a very similar service back in 2000. (I remember the case well; I was in college when it was decided, and it directly influenced my decision to go to law school.)

But I think there’s a very real chance Amazon will emerge scot-free from all of this, because Cloud Player is built on top of massive amounts of bandwidth that simply didn’t exist for previous entrants in the market. In fact, by pursuing Amazon here, the labels might hurt their own cause in a fatal way. Let’s take a look.

When I first heard that Amazon’s new service didn’t have the legal blessings of the music industry, I was nonplussed. Why on earth would you poke the music industry? Have you seen the first page of Google search results for RIAA? They’re apparently almost as famous for suing people as they are for commoditizing music.

It’s not suicidal, though. The RIAA’s actually never sued people for turning a CD into a bunch of MP3s, even though it’s almost certainly a violation of the “anti-circumvention” provision of the DMCA. Their reluctance to sue for CD -> MP3 or MP3 -> iPod is pretty well-founded, too. Even though currently in the Second Circuit, the DMCA has no Fair Use exception, that the RIAA hasn’t been willing to start suing for ripping CDs is illuminating.

Patel points out that Amazon’s just adding a link to the chain: CD -> MP3, and then MP3 -> Amazon. If the first copy is okay, why can’t the second? Read Patel’s post; he really points out how the RIAA has painted themselves into a corner with their shortsighted business and legal strategies over the last decade.