San Diego’s Michael Robertson, MP3tunes, Claim ’99 Percent’ Win in Fight Over Cloud Music

8/23/11Follow @bvbigelow

A federal judge in New York has largely rebuffed a request for summary judgment in a copyright infringement case that Capitol Records and its parent EMI Music Group filed in 2007 against MP3tunes, the San Diego-based provider of cloud-based music services.

MP3tunes founder Michael Robertson, who previously founded San Diego’s MP3.com (and became a pariah of the record industry), is claiming a 99 percent victory for cloud music and MP3tunes’ business model. In a more impartial account on PaidContent, reporter Joe Mullin agrees the ruling by William H. Pauley, a federal judge for the U.S. District in the Southern District of New York, has ramifications for cloud-music services launched by Apple (NASDAQ: AAPL), Google (NASDAQ: [[ticker]]), and Amazon (NASDAQ: AMZN). A copy of the ruling is available online here.

In his ruling yesterday, the judge writes that the case turns in large part on whether MP3tunes is eligible for protection under the safe harbors provision of the 1998 Digital Millennium Copyright Act (DMCA). The act establishes some rules that online music providers must follow to gain that safe harbor protection. The judge found that MP3tunes mostly complied with those rules by promptly responding to “takedown” notices sent by EMI record companies under the DMCA, and by deleting 153 accounts of the users who repeatedly infringed EMI’s copyrights by downloading copyright-protected songs.

But the judge says MP3tunes and Robertson, who also was personally named as defendant in the case, didn’t go far enough by going into its users’ online music storage “lockers” and actually delete the copyright-protected songs. As a result, MP3tunes and Robertson still could be found liable for infringing EMI copyrights on 171 specific songs that remained in users’ lockers following EMI’s takedown notices.

Michael Robertson

“Overall, it was an enormous victory for MP3tunes and digital music compatriots like Amazon, Google, and Grooveshark,” Robertson writes in his blog post. “It wasn’t a complete victory and it is not a final ruling because there are outstanding issues and both sides can appeal, but we’re prepared to continue battling for the last 1 percent.”

Bruce V. Bigelow is the editor of Xconomy San Diego. You can e-mail him at bbigelow@xconomy.com or call (619) 669-8788 Follow @bvbigelow

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