1-April: Updated to include comment from Michael Robertson of MP3Tunes.
What Apple took away, Amazon has restored.
I’m talking, of course, about Lala, the pioneering digital music service that Apple purchased in December 2009 and shut down more than a year ago. The first thing Apple did, almost immediately after purchasing the company, was to disable its Music Mover feature, which allowed Lala members to upload their personal music collections to a cloud-based locker where they could play it from any web browser.
Yesterday, with the double-barreled launch of its Cloud Drive storage service and the tightly linked Cloud Player, Amazon brought that capability back to a mass audience. They’ve executed their strategy brilliantly, and they’ve painted the recording industry and their archrival Apple into a corner.
As far as I’m concerned, Amazon just moved the needle significantly on the music industry. Yes, the recording companies are whining already. I have no doubt that legal teams from all of the major record labels are in war-room mode right now. But their legal case is nonexistent. Here’s what they’ll find out if they try.
No sharing? No legal case.
Every analysis of the new Amazon services I’ve seen has brought up the example of the lawsuit against Michael Robertson’s mp3tunes.com by EMI. Superficially, that service is similar to what Amazon is offering. But there’s an absolutely crucial difference. Amazon allows you, personally, to upload your music files to a digital locker and then play them back through a browser or an Android app. By contrast, mp3tunes.com includes a full API that allows developers to “create cool apps and device access to the MP3tunes Locker.”
That might sound awesome, but it arguably violates the license agreement for digital downloads. I’ve looked carefully at those agreements before. If you haven’t read that post, it’s worth going back for a revisit. All of the major online music providers, including Apple and Amazon, have been selling tracks and albums for years. Those agreements have been accepted by the major record labels without any challenge.
Here’s what’s in section 2.1 of the Amazon agreement (iTunes has similar terms):
Upon your payment of our fees for Digital Content, we grant you a non-exclusive, non-transferable right to use the Digital Content for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use. You may copy, store, transfer and burn the Digital Content only for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use. [emphasis added]
Amazon’s new cloud services allow only personal, non-commercial use and don’t allow any sharing. This identical language is found in the terms of service for both Cloud Drive and Cloud Player:
You agree not to use the Service in any other way, including to store, transfer or distribute files of or on behalf of third parties, for any form of file sharing, to operate your own file storage service or to resell any part of the Service.
You have to sign in with your personal Amazon account, where you can copy, store, and transfer your personal saved files. You can’t give anyone else access. Again, per the terms of service:
You may not use a name, username or email address that you are not authorized to use or share your Amazon.com username and password with others for purposes of allowing others to use the Service through your account.
And Amazon hasn’t made the mistake of allowing third-party apps to access those personal files, either, as mp3tunes.com has. Game, set, match.
But wait, it gets better…
