February 24th, 2009

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The record labels' legal rampage against technology is growing in ferocity with an unprecedented broad attack that threatens how the Internet fundamentally operates. Nearly a year ago Warner Music sued Seeqpod in California claiming their search engine (which links to millions of songs) was a copyright infringement. Last week, EMI piled on with it's own copyright lawsuit this time in New York but, besides the venue, this lawsuit was fundamentally different. Instead of just targeting the corporate entity they filed massive monetary claims against individuals, investors and even an unrelated individual.

EMI's lawsuit named as defendants: Kazian Franks, Raf Podowski, Shekhar Lodha, and Ryan Sit. Mr. Franks is the CEO of Seeqpod and, although Seeqpod is a corporation, they are naming him personally for simply being the CEO. EMI is also naming Mr. Podowski and Mr. Lodha who are cited in court papers as being investors and playing some role in the establishment of Seeqpod. (We'll get to Mr. Sit in a second.)

These individuals are victims of the new record label strategy to intimidate technology companies by going after not just file sharers but founders, employees and investors. It is a gravely serious matter when a multinational media company tries to take all your possessions with claims of billions of dollars of damages. Nobody wants to risk losing their home, their car and all their worldly belongings. I was also recently sued personally by EMI and it is an unpleasant experience. (See: Record Labels Want My Minivan and I Get To Keep My Minivan) I had the ability to stand up to their nasty tactics, but many do not. This personal intimidation is highly effective. Rather than face the risk and expense of a personal lawsuit (even if they believe they are right) many will pay monies and/or shut down their service entirely as happened recently with an innovative online radio service.

Naming investors and CEOs should be disconcerting enough, but EMI took another step which threatens how the net works and this is where Ryan Sit comes into the picture. Ryan lives in my hometown of San Diego and is a graduate of my alma mater (UCSD). He works at a startup company. Ryan is married, with a one year old child and another baby on the way. In his spare time he builds smalls net projects to keep up with the latest coding techniques. For one of these, he combined Seeqpod, Last.fm, and Pandora to create Favtape. Favtape appears to be a music search engine, but it actually relies 100% on Seeqpod to perform these duties. Favtape doesn't track what music is played or downloaded - all that happens at Seeqpod. Mr. Ryan received a letter from EMI expressing displeasure in his service and he responded that Favtape simply shows search results and offered to switch from Seeqpod to YouTube if EMI wanted. He received no response to his offer.

Many technology companies encourage others to connect to their service and use them in innovative ways. Google is one of the largest examples of this with many connecting to Google's search, video, advertising and ecommerce services for their own business. The technical term for this is called an API (application programming interface) and nearly every respectable net company has an API and encourages its use. Here's a list of 50 digital music companies which offer an API including my company MP3tunes whose API is used by internet radios, DVRs, game consoles, etc. to play your own personal music collection from anywhere.

EMI's lawsuit against Ryan is the first example of an API user being sued for the actions of the host company. Dozens of web sites use Seeqpod's API including: Songerize, Songza, Streamzy, and JustHearIt but Favtape had the misfortune to be in the record labels crosshairs. If API users can be held liable it threatens how the internet works. The internet is well, inter-connected - not just user to user but service to service. If you can't connect there is no internet. Of course, it's not just music services that connect. Some of the most innovative developments are called mashups –when two services are combined together– like a crime database and a mapping service used to create the Sexual Offender locator.

Content owners should have right to control where their property is displayed on the net, but the right does not extend to holding liable anyone who links to that material. Targeting the originator is sufficient because if the source is removed all links or services depending on that will immediately become invalid. If Seeqpod is found by the courts to be a copyright infringement it will go away and immediately break all links to it. API usage, like Favtape does, is like a sophisticated form of linking or referencing which I believe is protected under the DMCA 512 safe harbor which makes it legal to link to material - even if it that material may be infringing.

Rather than get more enlightened and more open minded to working with technology companies record labels seem to be moving in the opposite direction. They've moved from a 12 gauge to an 8 gauge shotgun spraying bullets in an ever wider path to take out even more victims in a desparate attempt to slow the advance of technology. I look forward to the day when the court will hear our case about the legality of secure personal music storage as well as advanced music search engines like Seeqpod. The net and digital companies need clarity on these issues going forward. But the case against Ryan Sit is misguided and I hope it is dropped.

Final note: In case, you're wondering why EMI chose to file a lawsuit in NY (in spite of the fact that all of the defendants reside in California with another lawsuit already in progress), an attorney I spoke with said this was intentional because in New York it is easier to hold a CEO personally liable than it is in California.

--MR
michael@michaelrobertson.com