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June 05, 2005
Warner Music Implies iTunes and Listen.com Guilty of Massive, Ongoing, Criminal Copyright Violations
Posted by Ernest Miller
They haven't come out and said it directly, but that would appear to be what Warner Music Group is claiming according to statements they made to the music publishing company Third Story Music. I wrote about this story last week (Licensed Music May Backfire on Recording Company). Basically, Tom Wait's publishing company is suing WMG for additional royalties, since they get more for third-party licenses as opposed to sales and DRM-encumbered downloads are licensed, not sold.
However, I missed this reply from WMG:
The action says that in February, Third Story sent a formal notice questioning the accuracy of royalty statements to WMG. The music company replied in March that downloads "are sold to customers such as iTunes and Listen.com just as physical product is sold to...Best Buy and Virgin."
Whoa nellie! If WMG is merely selling the equivalent of physical product to
iTunes and
Listen.com, that doesn't give iTunes and Listen.com the right to make additional copies and distribute them (for sale no less!) via the internet. Heck, the music industry is quite clear in its position that there is no first sale doctrine for digitally downloaded goods, so even that won't protect iTunes and Listen.com.
If WMG's claim is true (and they should know, shouldn't they?), this is the biggest case of blatant, willful, criminal copyright infringement I've ever heard of. Someone should call the Feds.
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Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
