[DMCA-Activists] Another Suit Against Morpheus

[Seth Johnson]

(Forwarded from Pho list.  Article text pasted below.  -- Seth)

-------- Original Message --------
Subject: pho: Another Frivolous Record Label Lawsuit
Date: Tue, 3 Jun 2003 13:42:30 -0700
From: Brian Zisk <address@hidden>
To: address@hidden

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Record Labels Again Sue Creators of Morpheus Service
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The new suit is filed in Nashville, and targets a Streamcast online radio
database that was never launched.

By Jon Healey
Times Staff Writer

June 3 2003

Like frustrated prosecutors charging an acquitted crime boss with tax
evasion, the major record labels are suing the creators of the Morpheus
file-sharing network again -- not over the software that millions of people
use to copy billons of songs for free but over a service that never
launched.

The complete article can be viewed at:
http://www.latimes.com/la-fi-morpheus3jun03,0,1334539.story

Visit Latimes.com at http://www.latimes.com
-- 

Brian Zisk

Future of Music Coalition
http://www.futureofmusic.org

---

> http://www.latimes.com/la-fi-morpheus3jun03,0,1334539.story


Record Labels Again Sue Creators of Morpheus Service

By Jon Healey, Times Staff Writer
June 3, 2003


The new suit is filed in Nashville, and targets a Streamcast online radio
database that was never launched.


Like frustrated prosecutors charging an acquitted crime boss with tax
evasion, the major record labels are suing the creators of the Morpheus
file-sharing network again — not over the software that millions of people
use to copy billons of songs for free but over a service that never
launched.

The claims come about a month after the labels, music publishers and
Hollywood studios suffered a stunning setback in their first copyright
infringement lawsuit against Morpheus' creator, Streamcast Networks Inc.
U.S. District Judge Stephen V. Wilson ruled that Streamcast and Grokster,
the distributor of another popular file-sharing program, weren't responsible
for the piracy committed by their programs' users.

Wilson is in Los Angeles. The labels took the new case to a federal court in
Nashville, where Streamcast and its precursor companies were based when they
developed the service in dispute.

"The legal term for this is 'forum shopping,' " said attorney Mark
Radcliffe, a copyright-law expert at Gray Cary Ware & Freidenrich in Palo
Alto. "You get a bad decision someplace, you go someplace else.... They're
filing in a place where music is important, where they've got a good chance
of getting a sympathetic decision."

The Recording Industry Assn. of America issued a brief statement in response
to questions about the lawsuit, saying only that "this is another step in
our ongoing litigation against Streamcast, a company that we believe is
responsible for widespread copyright infringement."

Streamcast executives said they were outraged. They said the company tried
to develop an online radio service three years ago, abandoning the effort
when it couldn't get licenses from the labels. Now, they complained, they're
being sued for legitimate steps they took to prepare for the would-be
venture.

The record labels are "sore losers," said Michael Weiss, chief executive of
Streamcast. "It looks like they're coming after us for exploring another
legal business model, one that we didn't even launch."

At issue is a computerized collection of music that Streamcast — previously
known as MusicCity.com Inc. and Infinite Music Inc. — compiled in 1999 and
2000.

The lawsuit alleges that Streamcast acquired CDs with thousands of songs,
then converted them into a digital database on hard drives and other storage
devices. The company made multiple copies of the songs and the database, all
without the permission of the copyright owners, the lawsuit alleges.

The labels made a similar accusation in 1999 against MP3.com Inc., which
launched an online music-storage service without the labels' permission. A
federal judge in New York ruled that MP3.com violated the labels'
copyrights, forcing the company to pay more than $100 million in
settlements.

Unlike MP3.com, Streamcast created its database for an Internet radio
service that complied with the 1998 Digital Millennium Copyright Act, said
Charles S. Baker, the company's attorney. Streamcast tried to strike
licensing deals with the labels; Baker said it did that even though it
wasn't clear that a radio service needed to be licensed.

All Internet radio stations convert their discs into an electronic database,
and a legitimate station's database shouldn't be grounds for a lawsuit under
the 1998 act, said Jonathan Potter of the Digital Media Assn., a trade group
for online broadcasters.

"The questions for Streamcast are: What did they do with it and why, and are
the record companies being over-aggressive or did Streamcast do something it
shouldn't have done?" Potter said.

The lawsuit accuses Streamcast of distributing songs and copies of its
database — without saying how or to whom — as well as transmitting the songs
digitally for a commercial purpose. It also alleges that Streamcast withheld
critical information about the database and its actions until last year,
when the information was disclosed in the industry's first lawsuit.

Baker said the second suit was filed too long after the alleged
infringements to be valid. He also accused the labels of violating a
protective order issued in the first case in Los Angeles by releasing
information about the database that they were supposed to keep confidential.

Michael Cohen, an attorney at Heller Ehrman White & McAuliffe in Washington
who specializes in antitrust, copyright and digital-media issues, said the
labels could have legitimate procedural reasons for suing Streamcast a
second time in a different district years after the alleged piracy occurred.

"Just because it's past and not ongoing doesn't mean you weren't hurt by it
when it happened," Cohen said.

Potter, a frequent opponent of the RIAA, had a different reaction: "The
record companies have a history of suing people that they just don't like."


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