Wednesday, December 31, 2008

MP3Tunes accuses EMI and its affiliates of engaging in massive free distribution of song files over internet in Capitol Records v. MP3Tunes

In Capitol Records v. MP3Tunes, in opposition to EMI's motion to dismiss counterclaims, MP3Tunes has made detailed factual allegations that EMI and its affiliates have been engaging in massive free distribution, over the internet, using its own websites, using music blogs and other third party sites, and employing paid content delivery networks, of its song files, including the song files which it alleges MP3 is infringing.

The opposition papers list a number of sites on the internet where EMI has made its song files available for free download, "free to everyone (except, apparently, MP3tunes)". (Declaration of Michael Robertson, page 5, paragraph 11.

As an illustration, MP3 Tunes alleged:

One prominent example is the song “U R So Gay” from the aforementioned Katy Perry, who is signed to Capitol Records, which in turn is owned by EMI. While this is one of the thousands of songs EMI is suing MP3tunes for linking to on its web site, everyone else in the world is free to listen to and download the song from the following URL:

In the above-referenced URL, “” is the domain name. As explained above, it is the brand name for Akamai, the CDN that EMI pays to distribute its music, for free, over the Internet. Just before that, “capi001” reflects that EMI’s Capital Records has an account with Akamai for music distribution.
(Declaration of Michael Robertson, pages 4-5, paragraphs 10-11). The opposition papers continue:
Here are some other examples of EMI songs which Akamai currently distributes over the Internet, free to everyone (except, apparently, MP3tunes):

· Lil’ Ru, “Don’t I Look Good” (EMI’s Capitol Records)

· Beastie Boys, “Car Thief A Capella” (EMI’s Capitol Records)

· Doves, “Sky Starts Falling” (EMI’s Capitol Records)

· Seth Lakeman, “King and Country” (EMI’s Relentless Records)

· XX Teens, “Darlin Original” (EMI’s Mute Records)

· Moby, “Moby Last Night” (EMI’s Mute Records)

MP3tunes also has several examples of music that EMI has distributed for free over the Internet in the past, but has removed from the Internet since the start of this litigation.

12. In addition, MP3tunes has since found EMI-copyrighted songs on the Internet
with URLs indicating that they were distributed by CoralCDN and Nine Systems, two other paid services which, like Akamai, distribute free MP3s for download over the Internet.
(Robertson Declaration, pages 5-6, paragraphs 11-12). MP3Tunes went on to document that EMI itself distributes the song files for free from its own web sites, directly:
among the record label sites owned by EMI which distribute free MP3 files are EMI Chrysalis, Definitive Jux Records, Siren Records, Parlophone, Bec Recordings, and Mute Record. Here are examples of actual EMI-copyrighted songs currently available for free download to everyone (except, apparently, MP3tunes):

· Vincent Vincent and the Villains, “I’m Alive ” (EMI Chrysalis)

· Hercules and Love Affair, “Hercules Theme” (EMI Chrysalis)

· Aesop Rock “Ghosts of The Barbary Coast” (EMI’s Definitive Jux Records)

· Goldenhorse, “Don’t Wake Me Up” (EMI’s Siren Records)

· Goldenhorse, “Fish” (EMI’s Siren Records)

· Sparklehorse, “Shade and Honey” (EMI’s Parlophone Records)

· Mailers, “Morning Runner” (EMI’s Parlophone Records)

· Baby Shambles, “Lost Art of Murder” (EMI’s Parlophone Records)

· Chris Taylor, “Take Me Anywhere” (EMI’s Bec Recordings)

· Chris Taylor, “That’s How It Goes” (EMI’s Bec Recordings)

· Michael Andrews and Gary Jules, “Mad World” (EMI’s Mute Records)

Please note that these too are just examples. There are hundreds, if not thousands, of other EMI copyrighted songs on such sites which fit this category.

(Robertson declaration, pages 6-7, paragraph 13). The papers also alleged that many of the links which form part of EMI's infringement claim are links to music blogs and other sites which offer free downloads of EMI material with EMI's authorization or implied consent.

Declaration of Michael Robertson
Defendant's Memorandum of Law

Commentary & discussion:


Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Alter_Fritz said...

2008-12-31 22:36:17.875 Connecting to
2008-12-31 22:36:17.906 Connecting to
2008-12-31 22:36:17.937 Connected
2008-12-31 22:36:17.937 GET /herculesandloveaffair/downloads/16_11_07/Hercules_T%20heme.mp3 HTTP/1.1
2008-12-31 22:36:17.937 Host:
2008-12-31 22:36:17.937 Referer:
2008-12-31 22:36:17.937 Accept: */*
2008-12-31 22:36:17.937 User-Agent: Mozilla/4.0 (compatible; MSIE 5.00; Windows 98)
2008-12-31 22:36:17.937 Connection: Keep-Alive
2008-12-31 22:36:17.984 HTTP/1.1 404 Not Found
2008-12-31 22:36:17.984 Date: Wed, 31 Dec 2008 21:36:17 GMT
2008-12-31 22:36:17.984 Server: Apache
2008-12-31 22:36:17.984 Content-Length: 258
2008-12-31 22:36:17.984 Content-Type: text/html; charset=iso-8859-1
2008-12-31 22:36:17.984 Connection: close
2008-12-31 22:36:17.984 Http server error

"Dear members of the jury, the evidence above shows that EMI is a bunch of criminals, Put them behind bars" (Well actually it just showed that you either have made an link error Ray by putting a space between "T heme.mp3" or they removed the content in an act of destroying evidence. Anyway, technical mumbo jumbo that does not make sense and some fancy looking log lines seems to be enough to get great Jury awards from not so smart juroors. So who do i sue fro my trouble in getting that song? You Ray or EMI? ;-)

Alter_Fritz said...

see, that looks better:

2008-12-31 22:46:15.078 Connecting to
2008-12-31 22:46:15.078 Connecting to
2008-12-31 22:46:16.265 Connected
2008-12-31 22:46:16.281 GET /herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3 HTTP/1.1
2008-12-31 22:46:16.281 Host:
2008-12-31 22:46:16.281 Referer:
2008-12-31 22:46:16.281 Accept: */*
2008-12-31 22:46:16.281 User-Agent: Mozilla/4.0 (compatible; MSIE 5.00; Windows 98)
2008-12-31 22:46:16.281 Connection: Keep-Alive
2008-12-31 22:46:16.531 HTTP/1.1 200 OK
2008-12-31 22:46:16.531 Date: Wed, 31 Dec 2008 21:46:16 GMT
2008-12-31 22:46:16.531 Server: Apache
2008-12-31 22:46:16.531 Last-Modified: Tue, 06 May 2008 10:32:14 GMT
2008-12-31 22:46:16.531 ETag: "116f75f-41dfac-44c8d5c91c780"
2008-12-31 22:46:16.531 Accept-Ranges: bytes
2008-12-31 22:46:16.531 Content-Length: 4317100
2008-12-31 22:46:16.531 Content-Type: audio/mpeg
2008-12-31 22:46:16.531 Connection: close
2008-12-31 22:46:16.546 Start receiving data
2008-12-31 22:46:56.281 Finished at 4317100
2008-12-31 22:46:56.312 Download complete.

or in other words: please correct your link Ray and have a "Guten Rutsch ins neue Jahr" afterwards:-)


raybeckerman said...

OK Alter_Fritz, I fixed the link.

Alter_Fritz said...
This comment has been removed by the author.
Eric said...

Doesn't copyright give them the legal right to decide how the music gets distributed? So mp3tunes might be liable for infringement.... but mp3tunes could very easily argue that since they were distributing these songs for free already then EMI has to make a strong case for any actual damages from them ( or anyone ) sharing those files.

Alter_Fritz said...

Eric, you are totally on the wrong track!

Defendant/CounterPlaintiff was NOT distributing anything.

It was/is offering a listing of Links just like google is.

EvilEMI lawyers commited a crime (it is a crime, isn't it to do something unter penalty of perjury that is not the truth?) [here: claiming that there is absolutely no legal EMI music out there in any case, so if there are links out there those must be illegal too and CounterPlaintiff is doing ilegal stuff by mentioning those links.]

Defendant/CounterPlaintiff has just demonstrated that this claim by EMI Lawyers is a bloddy Lie!

And if the justice works as it should do, those criminal EMI lawyers must be toast now if everything in american courts work by following law/order/justice and not who has the biggest pockets.

Anonymous said...

Just been reading Pariser's direct testimony in Capitol v Thomas (making it text, cleaning it up and reading it).

If this is true and applicable to the other labels. It destroys her "harm" testimony.

It also creates a huge burden of proof that a person with a particular riaa file did not get it from an authorized source.

There is already testimony that a normal consumer has a lot of trouble avoiding sharing her entire directory structure.


Anonymous said...

This goes hand in hand with the allegations that the RIAA members actually
USE P2P apps to get their material quickly
to radio stations quickly for airplay.

They claim that having the file in
a share implies that mass distribution
is OK, so if the RIAA IS using P2P for
that purpose it WOULD destroy their cases.


Alter_Fritz said...

Ray, you don't like that the record companies are "so gay"?
Since the first two links you quote are no links anymore?! :-(