While Muxtape is temporarily shut down, sidelined with RIAA problems similar to that of Pandora, attorneys familiar with the territory say the make-your-own mixtape site may be on solid legal ground with a potential case against the RIAA. According to Fred Von Lohmann, Electronic Frontier Foundation's senior intellectual property attorney, the site is protected under the Digital Millennium Copyright Act of 1998, which provides for a so-called "safe harbor" for hosting material on behalf users, and the same defense used by user content sites like YouTube.
"I think they have a strong legal defense," Von Lohmann told RollingStone.com. "The problem is if they might not have that money to go to court and take on the RIAA." Von Lohmann said legal fees could cost around $2-3 million, an investment the Websites would likely rather spend on tech engineers.
An RIAA spokesman said it has made attempts to resolve the issue with Muxtape. "For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings."
All this suggests RIAA is focusing on Websites who have the most buzz and popularity and trying to make deals, Von Lohman said. Last year they sued the popular music site Seeqpod and struck a deal with Imeem. "It's good news bad news. The bad news RIAA is tying to shut down sites fan love. Muxtape is not a direct threat. It's streaming. The good news in the last year they've shown a willingness to work out deals rather than destroying these site. Imeem was that success story."
Muxtape founder Justin Oullette did not respond for comments on the status of the Website, or whether he would strike a deal.
"Maybe they didn't agree with financial terms," Von Lohmann added. "Or maybe they might not have any money. But it's a measure of success to be sued by the RIAA. Once you're popular enough, that's when they come calling."
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