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Major record labels sue Myxer for alleged copyright infringement

Ad-supported mobile entertainment provider Myxer is being sued for copyright infringement by well-known record companies such as Arista Records, Sony BMG, Warner Bros., Virgin Records and nine others.

The plaintiffs claim that Myxer is building an Internet business which is growing through the use of copyrighted works which Myxer has not obtained rights for.

"Through the use of copyrighted material, to which it has made no effort to obtain the rights, including many of plaintiffs' most valuable copyrighted works, Myxer is building its Internet business, which is growing in size exponentially and on a daily basis by seeking to usurp the important ringtone licensing market for itself and has incurred none of the costs required to create such content," the public filing said.

The plaintiffs are represented by trial lawyer Jeffrey Goldman of Loeb & Loeb LLP, a law firm with particular focus in copyright, trademark and entertainment litigation.

Mr. Goldman counsels a diverse array of clients, including record companies, motion picture studios, music publishing companies and prominent recording artists, actors, songwriters and athletes.

Among other significant matters, Mr. Goldman represented the recording industry in the Napster copyright litigation; counseled Geffen Records in its disputes with Courtney Love concerning her recording agreement and the Nirvana catalog; and represented MCA Records in a case involving the interaction of trademark law with the First Amendment.

Mr. Goldman has also litigated issues in the intellectual property arena for clients, including toy companies, automakers, pharmaceutical companies, magazine publishers and cosmetics companies.

The plaintiffs in this particular case are the world's leading record companies, which make their money through the sale and licensing of copyrighted songs.

The civil action seeks damages and injunctive relief for copyright infringement under the Copyright Law of the United States.

In recent years, selling sound recordings for use as ringtones for mobile phones has become an important and lucrative market for record companies.

Record companies argue that they expend a tremendous amount of effort in order to determine whether particular recordings should be offered for sale as a ringtone. Some artists do not want their recordings sold as ringtones, for example.

Myxer claims to be the largest and fastest-growing place for free ad-supported mobile content. The company claimed to have more that 4.2 million unique monthly visitors and 350 million monthly page views when this suit was filed.

The content provider maintains that it respects copyright and works vigilantly with rights holders to prevent the unlawful distribution of copyrighted material through its platform.

"Indeed, we have for years consistently developed technology and programs specifically to help in this endeavor," said Myk Willis, CEO of Myxer, New York. "We have an executive-level copyright compliance officer who oversees the implementation of our DMCA processes.

"We have take-down, stay-down technology to help prevent material previously taken down because of copyright complaints from being reposted," he said.

Mr. Willis also said Myxer has a Protect program, which provides rights holders with immediate and direct access to all content flowing through the Myxer platform, allowing them to inspect and remove content claimed to be infringing immediately.

But that cuts no ice with the plaintiffs.

"In addition to making and maintaining copies of plaintiffs' copyrighted works on its own services and distributing those copies and derivative works based upon those copies to its users, Myxer knowingly facilitates and, encourages and induces its users' infringements of plaintiffs' copyrights," the filing says.

There are a number of lawsuits going on against content providers such as Myxer.

"We've always had a focus on empowering artists that have been shut out of the legacy mobile entertainment value chain, Mr. Willis said.

"But as we've grown over the years, to the point where we have millions of visitors to our Web site every month, we have been presented with challenges in terms of preventing abuse of the system.

"We have very large, traditionally mainstream artists who use Myxer to promote their music and connect with their fans without ever talking to us.

"Tens of thousands of people sign up for Myxer accounts every single day. And all of the technology and programs in the world can't help sort out who's authorized to do what without the close cooperation of rights holders, which is why we've been proactively reaching out to the major labels and other large media interests for a long time.

This suit resembles the one filed against Napster a few years ago.

Napster's technology allowed people to easily copy and distribute MP3 files, bypassing the music industry and leading to accusations of massive copyright violations.

Napster was shut down by court order. However, it paved the way for decentralized peer-to-peer file-distribution programs.

In the Myxer case, the company is relying on the Digital Millennium Copyright Act (DMCA).

DMCA is a U. S. copyright law that implements two 1996 treaties of the World Intellectual Property Organization.

The law criminalizes dissemination of technology, devices or services intended to circumvent measures that control access to copyrighted works and it also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

In addition, the DMCA heightens the penalties for copyright infringement on the Internet.

In the case of Myxer, its community generates content and Myxer trusts that the community will follow the rules.

But the plaintiffs disagree.

"Myxer is not simply a facilitator of infringing peer-to-peer downloads of ringtones," the filing alleges. "Myxer itself reproduces stores on its own servers and distributes â?¦ unauthorized copies of entire full-length recordings."

Per the DMCA law, Myxer deletes works after receiving notices that it deems to be compliant with copyright infringement.

"What this means is that facilitators of content such as Myxer must undertake due diligence to make sure they are in accordance with the DMCA," said Andy Lustigman, an attorney at The Lustigman Firm P.C, New York.

"The DMCA essentially provides a safe harbor," he said. "If a record company provides a notice the content provider needs to take down the content, the provider just needs to take it down.

"If you provide ringtones and benefit financially then you have to confirm that the content you are making money on is authorized."

The filing claims that Myxer provides thousands of free, unauthorized ringtones for download to its users, including those of the Plaintiffs' copyrighted sound recordings.

Myxer makes its content easily searchable by music genre, search terms and popularity.

Once a ringtone is located, a user can quickly preview the tone and with a single click send the tone via text message to the users' mobile.

The filing claims that a substantial part of the ringtones available on Myxer are recorded music of famous artists and the remainder are copyrighted snippets from television shows and movies.

The plaintiffs are asking for $150,000 with respect to each work infringed.

"Myxer receives a direct financial benefit from its users' infringements of the copyrighted sound recordings, including by participating in the revenue earned from the sale of ringtones embodying the copyrighted sound recordings and revenue shared from selling advertisements on the site," the filing says.

"It's unfortunate that litigation seems to be used as a negotiation tactic, because it makes it nearly impossible to have truly meaningful discussions about how we can work together to leverage the enormous potential of mobile for the future of the industry," Mr. Willis said.

"Nevertheless, I'm confident that in the end, a new mobile economy will emerge that embraces the spirit and scale of the Internet, and provides far bigger opportunities than those available in today's all-but-closed mobile entertainment value chain," he said.

"Ultimately, mobile represents a fantastic opportunity for the music industry."

Please click here to download a PDF copy of the plaintiffs' filing.