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

By Ty Rogers and Ray Beckerman

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 Sideload.com web site, everyone else in the world is free to listen to and download the song from the following URL: http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3

In the above-referenced URL, ?edgeboss.net? 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)
http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_l
ook_good_cl.mp3

· Beastie Boys, ?Car Thief A Capella? (EMI?s Capitol Records)
http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thi
ef_A_Cappella.mp3?ewk13=1

· Doves, ?Sky Starts Falling? (EMI?s Capitol Records)
http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skysta
rtsfalling.mp3

· Seth Lakeman, ?King and Country? (EMI?s Relentless Records)
http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and
_country_128k.mp3

· XX Teens, ?Darlin Original? (EMI?s Mute Records)
http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3

· Moby, ?Moby Last Night? (EMI?s Mute Records)
http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3

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)
http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3

· Hercules and Love Affair, ?Hercules Theme? (EMI Chrysalis)
http://emichrysalis.co.uk/herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3

· Aesop Rock ?Ghosts of The Barbary Coast? (EMI?s Definitive Jux Records)
http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html

· Goldenhorse, ?Don?t Wake Me Up? (EMI?s Siren Records)
http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3

· Goldenhorse, ?Fish? (EMI?s Siren Records)
http://goldenhorse.co.nz/mp3s/Fish.mp3

· Sparklehorse, ?Shade and Honey? (EMI?s Parlophone Records)
http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeand
honey.mp3&DOWNLOAD=1

· Mailers, ?Morning Runner? (EMI?s Parlophone Records)
http://www.parlophone.co.uk/mailers/morningrunner/Cant_Get_It_Right.mp3

· Baby Shambles, ?Lost Art of Murder? (EMI?s Parlophone Records)
http://www.parlophone.co.uk/babyshambles/timesdownload/download.php?DOW
NLOAD=1&FILENAME=babyshambles-lost_art_of_murder.mp3

· Chris Taylor, ?Take Me Anywhere? (EMI?s Bec Recordings)
http://www.becrecordings.com/christaylor/1.mp3

· Chris Taylor, ?That?s How It Goes? (EMI?s Bec Recordings)
http://www.becrecordings.com/christaylor/2.mp3

· Michael Andrews and Gary Jules, ?Mad World? (EMI?s Mute Records)
http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3

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

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Full post as published by Recording Industry vs The People on December 31, 2008 (boomark / email).