BMI Music executive calls cloud-based storage an ‘attack’

Google finally unveiled its long-rumored cloud-based music player today, albeit in beta form. “Upload your personal music collection to listen anywhere, keep everything in sync, and forget the hassle of cables and files,” boasts the Music Beta website.

Marvin L. Berenson, Senior Vice President of BMI, would rather you didn’t.

BMI Music executive calls cloud-based storage an 'attack'

Speaking on behalf of the music industry in an editorial published last week at the official BMI website, Berenson cites the court case Capitol Records, INC., et al. v. MP3Tunes, LLC (.pdf here) which “raises issues about the legality of unlicensed ‘cloud-computing’ music services.”

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Summarizing the defense’s argument, Berenson wrote:

MP3tunes claims that it is offering only passive equipment and should not be liable for any of the activities of its customers that occur when they use its service and that the customers are the ones that upload the music, thereby committing the “volitional acts” that MP3tunes claims that the law requires for direct infringement. It claims customers push the “play button” and therefore the customers are the volitional actors when it comes to transmissions of the performances.

“BMI,” he wrote, “holds that the public performing right has long applied to on-demand, interactive streaming.”

In other words, cloud-based storage – among others.

The differences between public and private performance as it relates to music are up for interpretation according to Berenson.

Applying the findings of a court case involving Cablevision and public performance rights, he contends that “MP3tunes relies on the 2nd Circuit’s Cablevision decision that concerned the operation of a ‘remote DVR’ service permitting subscribers to ‘time-shift’ their viewing of cable television programs,” he said, adding “it was only the existence of the unique copy made by each subscriber that was the critical factor that saved Cablevision from being an infringer.”

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Berenson remains skeptical of MP3Tune’s argument that privately made music files are by default considered private performance upon use. “MP3tunes takes a broad view of Cablevision, claiming that when a user makes a copy on a dedicated, private remote storage device and plays it back only to him or herself, the playback is a private performance,” he said.

Furthermore, Berenson believes that “MP3tunes cannot evade that essential aspect of the court’s ruling on the grounds it would be more efficient to infringe with one copy in storage for all recipients.”

Prior to Google’s “Music Beta” launch, Amazon debuted its own cloud-based music solution.

The aptly-titled “Cloud Player” was the first to market, but with that head-start came privacy concerns regarding a clause in its Terms of Service which stated the company could “access, retain, use and disclose” users’ files and account information.

Berenson confirmed his company “will continue to monitor and report on issues that affect the performing right” and “protect the rights of songwriters, copyright holders and the entire creative community.”

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Adding Apple’s own upcoming cloud solution for its hugely popular iTunes service, BMI will certainly be busy. (Via TechDirt)

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