Amazon Cloud Player and how bandwidth killed the copyright star
If you’re reading this you probably don’t need much background on Amazon Cloud Player — suffice it to say that Amazon launched a new “freemium” cloud storage service that’s tied into their music store. You get 5GB of online storage for free and 20GB if you buy an MP3 album from Amazon, and subsequent MP3 purchases don’t count against the cap. There’s also a Cloud Player app for Android that can play music files stored on your account — it doesn’t matter if they’re files you purchased from Amazon or elsewhere, and Amazon has tools that’ll upload your DRM-free iTunes purchases to make a switch easy. None of this is particularly earth-shattering — as a loyal Amazon MP3 customer who’s almost wholly switched to the subscription-based Rdio, I actually think most of these features are a couple years too late.
Predictably, however, a new type of music service has got the music labels in a tizzy — they say Amazon isn’t licensed for streaming, and talk of lawsuits has already sprung up, as has a perception that Amazon legally over-extended itself with the service. That perception has only been heightened by word that Amazon and Sony are now negotiating, and there’s already some bad precedent for Amazon — MP3.com lost a lawsuit over a very similar service back in 2000. (I remember the case well; I was in college when it was decided, and it directly influenced my decision to go to law school.)
But I think there’s a very real chance Amazon will emerge scot-free from all of this, because Cloud Player is built on top of massive amounts of bandwidth that simply didn’t exist for previous entrants in the market. In fact, by pursuing Amazon here, the labels might hurt their own cause in a fatal way. Let’s take a look.
We’ve been here before
Digital music locker services aren’t a new idea; they’ve just been constrained by bandwidth and the practical realities of copyright law in the past. Copyright law is inextricably bound up in the notion of copies and copying, a structural legacy that comes from physical media — copying a book is hard, so it’s easy to regulate the act of copying. But copying a digital file is trivially easy, so the law gets tripped up on what seem like insanely pedantic issues when it comes to digital media — instead of focusing on who owns the content, the law focuses on who owns the copy.1
UMG vs MP3.com was a prime example of this distinction in action. The My.MP3.com service was actually quite brilliant: you scanned in your CDs using their app, and then you got streaming access to all those MP3s on their site. (Remember, this was 2000 and most people were still on dialup, so uploading huge amounts of music wasn’t practical.) The labels sued almost immediately, of course. In court, MP3.com argued that its service was the “functional equivalent” of users making their own local copies of songs, an act protected by fair use, but the court didn’t buy it. Because MP3.com was the party that made the copies, it was found guilty of copyright infringement, and $53 million in damages later, the company went bankrupt.
Now, this makes perfect sense if you’re focused on the copy and not the content: it didn’t matter that the user owned the music on CD — what mattered was that MP3.com was making unauthorized copies. The judge basically laughed MP3.com out of court, because he viewed the law through the prism of copies.
So what’s new for Amazon? Bandwidth, and tons of it. We’ve reached the point where uploading 5 or 15 or 20GB of data to a cloud service is a feasible task for most broadband-connected consumers, and that changes the nature of the argument entirely. If you’re a Cloud Player customer, you get a defined 5GB or 20GB of storage, and the music that lives in that storage is your copy. Your copy that you’re allowed to make. It’s not “functionally equivalent” to a fair use copy anymore — it is a fair use copy. I’d even bet that additional purchased songs that don’t count against your cap are actually transferred to your storage and given extra space that doesn’t show up on the meter, because that way each user still has their own copy.2
This is going to completely fuck the labels, since they can’t argue that Amazon is making unauthorized copies of songs. In order to stop Cloud Player, they’re going to have to completely switch tactics and argue that it’s actually the content that matters, and that Amazon doesn’t have the rights to enable streaming content from their platform. But that’s a ridiculous argument, since Amazon is just going to say that it’s not actually doing much of anything — it’s just giving users some storage space and publishing an app that can play those files over the network. The labels will have to somehow argue that the content of the music files is protected, since they can’t really touch what the users are doing to their own copies.
But once the labels open the door to saying it’s the content and not the copy that matters, all hell will break loose. Once it’s the content that matters, the MP3.com case gets decided much differently — that “functional equivalent” argument starts to look a lot better. I’m not so sure the labels are willing to take that gamble just yet; the current model has served them well thus far. It’s only recently that consumers have been able to easily make remote copies of massive amounts of data, and it’s only now that Amazon is commercializing it in this way. The media industry will have to decide how to approach this very, very carefully — and I’d bet Cloud Player emerges unscathed in the meantime.3
The copy/content divide is at the heart of why copyright law feels completely out of touch with reality: copyright lawyers spend all day and night thinking about ownership of digital copies, while most non-lawyers couldn’t give two shits about who actually owns the digital copy of a song once they’ve bought it. ↩
This is insane, from a systems design standpoint. Why should Amazon store 50 million different copies of Teenage Dream? It would make far more sense to just have one copy that streams to everyone. But that’s a content-centric view of the world — and as we’ve seen, that view of the world is incompatible with our current copyright law. ↩
Barring some clause in the existing agreements between Amazon and the labels that forbids a service like Cloud Player, of course. ↩
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