Microsoft letter to GitHub over DRM-free music software is not the first copyright-ironic action against an intermediary

TorrentFreak has reported that Microsoft demanded that GitHub take the code repository of an app that provides access to unprotected Xbox Music tracks. Some are calling it ironic, given that Microsoft is offering access to DRM-free music through its API.

The situation is reminiscent (though not legally identical) to the weirdness we observed way back in 2006 when YouTube asked TechCruch to take down a tool that allowed people to download video clips. We recognized early on that YouTube was a copyright renegade. So it was surprising that it would take such an aggressive tactic toward purveyors of software that would make use of copyrighted works easier.

The Microsoft of today is certainly not the YouTube of 2006. So naturally its interests are different. But comparing the two scenarios yields the common conundrum of how one company that wants to more smoothly make content available deals with other technologies and platforms that do the same thing, but cut out the main monetizing opportunity.

It could be a phenomenon of copyright’s outdatedness. Both YouTube and Microsoft took action against others who were distributing technologies that touched on infringement by means of making copies of the works. That will likely remain an important protection under copyright law even after meaningful reform. But what is really at stake is the right to access content. If that were a meaningful right under the Copyright Act, companies would be less likely to take enforcement actions that appear on the surface to be ironic.

Evan Brown is an attorney in Chicago advising clients on matters dealing with copyright, technology, the internet and new media.