Chilling Effects: Another Mixtape Provider Shut Down

from the unfortunate-news dept

A few months ago, the RIAA shut down Muxtape, a very popular and incredibly useful online service that let individuals create "mixtapes" for streaming to others. As anyone with even a hint of business sense would recognize, this was a great promotional tool for musicians. I, personally, ended up buying a bunch of music after hearing stuff from others on Muxtape. But the way some of the big record labels see things, no one should be allowed to innovate without paying the record labels directly for the right to do so.

It seems this trend is continuing. Mixwit is the latest to shut down. Like Muxtape, Mixwit let people create cool mixtapes and share them online for streaming purposes. Mixwit had a neat little cassette tape interface as well and, again, was a great way of discovering new music and sharing music with friends. Mixwit founders said that they've been put between a rock and a hard place, which made plenty of folks naturally assume that the RIAA or one of the record labels shut them down. I spoke with a bunch of folks within the recording industry and the RIAA and asked each if they had anything to do with Mixwit shutting down, and those willing to say anything said something to the effect that they had not sent a takedown notice or filed a lawsuit (which, you'll note, answers a different question than the one I asked).

Of course, there are plenty of other ways to "shut down" a site without ever sending a takedown or filing a lawsuit. The Mixwit founders responded to an inquiry by basically saying that it wasn't a takedown or a lawsuit, but the simple uncertainty and expectation that one would eventually show up:

We've had good and not-so-good communications with the record labels over the past year, but we were never sued. I'm sure I don't have to explain that our mixtapes are perceived to be in a legally ambiguous state (at least as far as the labels are concerned). We've explored all options, including becoming fully-licensed, and we decided that the time commitment and economics just don't make sense, particularly with the economy the way it is. The decision was clear: we needed to shutdown the mixtapes. We thought about continuing with mixwit as a company, but we could never get assurance that the future of mixwit would not be hurt by the perceived liabilities of its past so we decided it was time to to shut things down.

That, ladies and gentleman, is chilling effects at work. No lawsuit needed -- just the history of previous lawsuits and an unwillingness to "allow" this innovative service to move forward. The RIAA and the labels insist that they don't try to stomp out innovations, but it looks like they did so here simply by being unwilling to say they wouldn't attack it in the future.

This makes even less sense than Muxtape's shut down, however. In the case of Muxtape, users uploaded their own tracks. Even that was a questionable reason, since you would think the liability should be on the individual uploaders rather than Muxtape itself. However, with Mixwit, it's even worse. Mixwit believed (quite reasonably) that they were on the right side of the legal line because they didn't host anything and didn't let people upload stuff. They just used search engines to find music that was already available elsewhere. So, now they're being shut down for merely letting you listen to music that's publicly available. If the recording industry has a problem with the content, it should go after whoever put it online, not a tool that allows it to be heard. You would think that Mixwit would have a pretty strong DMCA safe harbor argument, but it's probably way too expensive to even fight that fight.

So, the end result is the recording industry appears to have shut down yet another useful tool for music discovery -- and did so implicitly by making it impossibly expensive for the Mixwit guys to get assurances they wouldn't get sued. The guys behind the project appear to be considering open sourcing the code (by donating it to OpenTape, which created an open source version of Muxtape), so the technically inclined may eventually still be able to do something. But, with these types of moves by the recording industry happening so frequently, can you see why we're hesitant to simply trust them when they come up with their latest plan?

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