Google: Digital Music Case Has Cloud Law Implications

In a cloud computing legal battle, Google sides with ReDigi instead of Capitol Records, but court rebuffs its attempt to file a 'friend-of-the-court' brief.
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In an effort to defend the legal basis of cloud computing, Google on Wednesday asked a New York court for permission to file an amicus curiae, or friend-of-the-court brief, in a record industry lawsuit against ReDigi, an online market that facilitates the resale of digital music files.

A letter from the law firm representing Google, Fenwick & West, warns against granting the preliminary injunction requested by plaintiff Capitol Records. "A premature decision on incomplete facts could create unintended uncertainties for the cloud computing industry," the letter states.

The court, however, denied Google's request, on the basis that the parties in the lawsuit should be able to address the issues without assistance.

ReDigi describes itself as a used record store for digital music. It offers consumers a way to buy and sell pre-owned digital songs.

Record companies don't like this idea because they assume people purporting to sell digital songs are actually just making copies, in violation of copyright law. Capitol Records sued ReDigi last month for copyright infringement, alleging just that.

[ Google also is fighting charges its privacy policy consolidation will lead to less privacy. Read Google Calls Microsoft Privacy Claims 'Myth'. ]

ReDigi insists it does not make unlawful copies. It accepts only digital files acquired through iTunes or through ReDigi itself, not songs ripped from CDs. It attempts to verify that songs offered for resale have been legitimately acquired through what it calls a "forensic Verification Engine."

"Once you sell a song, you no longer have access to it," the company explains on its website. "This is how ReDigi stays legit, and how you now have access to an incredible marketplace where rights long accepted in the physical world may now be applied to digital goods."

ReDigi CTO Larry Rudolph declined to provide details about the company's proprietary technology, but acknowledged that metadata scanning is part of the process. "It does look at the metadata, however, that is only one aspect of the many that the process analyzes, so that the eligibility of the file can accurately be determined," he said in an email.

Google asked to participate in the case because it offers cloud-based storage, just like ReDigi and a host of other companies. Fenwick & West's letter to the court states that the health of the $41 billion cloud computing industry depends on a handful of legal principles challenged by Capitol Records.

The letter cites the 2008 Cablevision ruling (Cartoon Network LP v. CSC Holdings, Inc.) as an affirmation that service providers do not directly infringe copyright by allowing users to store copyrighted content on remote servers and that the private playback of such content does not constitute an unlawful public performance.

Capitol Records' request for a preliminary injunction against ReDigi, the law firm argues, "seeks to hold ReDigi directly liable for copying that users may initiate and for publicly performing copyrighted sound recordings by streaming songs to a single user from her own private 'locker.'"

ReDigi founder John Ossenmacher said that although he could not speak to why Capitol Records wants to shut down ReDigi, he believes the reason is probably the same reason that the record industry tried to shut down the secondary market for compact discs.

Fear, in other words. "It appears that the real reason for plaintiff's lawsuit is fear of competition from used digital music sales," ReDigi attorney Ray Beckerman said in a filing opposing the injunction request.

"Whatever the reason, it's not in the interest of the consumer," Ossenmacher said. "Furthermore, attempting to deny people their intrinsic and lawful ownership rights to their digital property will only further perpetuate piracy. If the labels do not think music has ongoing value, why should consumers?"

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