Music Publishers File Own Suit Against FastTrack cos.

By Robert Menta- 11/20/01

It seems the strategy of the music publishers in the online music wars has been to follow the record labels lead and file suit against whomever they sue. It makes a lot of sense, so far favorable rulings for the labels make it easier for them to collect, usually by settlement. Last month when the Recording Industry Association of America (RIAA) sued the popular FastTrack-powered P2P programs Morpheus, Grokster and KaZaa you could guess what was on the music publishers minds.

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And so it is now official. Yesterday the National Music Publishers' Association (NMPA) filed suit against the three companies who presently operate the most popular peer-to-peer file sharing services since Napster's shutdown.

The suit, filed in a federal court in Los Angeles, claim the companies are guilty of contributory and copyright infringement and seeks $150,000 per infringed work. Plaintiffs in the publishers' suit include the great song writing team of Jerry Leiber and Mike Stoller who's NY Times Op ED piece last year "Songs That Won't Be Written" addressed their viewpoint on file trading.

Said Mike Stoller, "This lawsuit seeks to preserve the important principles that the courts recognized in our case against Napster - that commercial businesses have a legal obligation to compensate songwriters for the use of their creative works, irrespective of the technology they use to do so. When millions of people use the Morpheus service, they are doing so not because they think the technology is 'cool.' They are using it because they can get our songs without paying for them. This has got to stop."

The real goal for the NMPA is not to fight this in court for several years, but to squeeze these companies to settle, paying for a compulsory license as Napster finally agreed to last September.

"Our preliminary resolution of our legal dispute with Napster paved the way for other Internet services to come to our music publishers for licenses," said Gary Churgin, President and CEO of The Harry Fox Agency, Inc in the NMPA press release. "MusicCity is trying to take us on a voyage through the past. But the wave of the future is licensed services and we intend to win the campaign against music piracy."

Of the three services, Tennessee-based Morpheus is the most vulnerable because it is the only one that is a US company. Caribbean-based Grokster and the Dutch-based KaZaa will be more difficult to collect off of a US ruling, another reason for the NMPA to push for an out-of-court settlement early.

But, unlike Napster, the FastTrack brethren avoid the use of a centralized server that opened up Napster's liability as an active participant in the file trading taking place on its network. Shut the parent company down (if there is one) and theoretically file trading continues unabated. The record companies say this is irrelevant as what they call "active" piracy is the sole purpose of these services existence.

Nonetheless, the services have chosen to fight and with the legal help of the Electronic Frontier Foundation (EFF), hope to win their case and not have to pay anything. No guarentees this will happen though, and since all three companies are looking to become income generating businesses, a settlement with the publishers may turn out to be a necessary business maneuver. That's at least what the publishers will continue to whisper in the ears of Morpheus' management staff throughout the course of this legal move.

The NMPA represents 800 music publishers and licenses members works through the Harry Fox Agency.

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