other groups supporting MP3tunes’s argument that it’s not responsible for what music its users store on its servers should be barred because it is “a pure advocacy piece, not a ‘friend of the court.’” Amicus curiae briefs are often filed by interest groups and the government in cases that could set major precedents, in order to illustrate the broader ramifications of the case.

MP3tunes, which EMI accuses of massive copyright infringement, allows its users to upload gigabytes of music from their computers so that they can stream it from MP3tunes to their mobile devices or work computers. EMI says the service makes mass copyright infringement easy by letting users upload music they didn’t buy and providing links to online songs that users can then “sideload” into their library.

After three years of litigation, EMI argues that EFF’s brief is too long, thereby “circumventing” the court’s “page restrictions” causing “additional burden” to the court and “prejudice” to the EMI. Because EFF’s brief supports MP3tunes, EMI says, its arguments are “duplicative” and should be not be allowed. In addition, EMI says, EFF’s brief “contains unsupported speculation that is not helpful to the Court.”

Anyone can submit such a brief as long as they’re not a party to the case, and judges have full discretion whether to accept them. They almost always do. EFF is a San Francisco-based group that advocates on behalf of individual rights and digital freedom on the internet.

Gregory P. Gulia, the Duane Morris partner who is lead counsel for MP3tunes, called EMI’s motion to bar EFF’s brief a “pathetic and desperate move.”

Neither counsel for EMI, nor a spokesperson for EFF, immediately returned a request for comment.

EMI sued MP3tunes in 2007. MPtunes operates a music “locker” service where users can store their music online, as well as a music search engine called Sideload, where people can find music tracks on other sites and then put them in their locker. EMI argues the two services allow for massive copyright infringement. MP3tunes says that it is shielded from liability by the “safe harbor” provisions of the Digital Millennium Copyright Act because it doesn’t encourage copyright infringement and promptly removes infringing content when notified.

Last week, the EFF filed an amicus brief along with several other groups asking the court to protect the “safe harbor” provisions of the DMCA. That provision protects companies such as Craigslist, eBay, Google, Yahoo and Facebook from being responsible for the content users create. If a user uploads a copyrighted photo or libels someone, you have to sue the individual, not the online service — so long as the service takes down the content in a timely manner.

Although EMI thinks that EFF’s brief should not be allowed, if the court does agree to include it in the case, the record label asked the court to allow submissions from the “numerous potential amici curiae interested in filing briefs in support of [EMI's] position in this case.” If the court allows such briefs, EMI said it would like to have amici heard “to correct the incorrect and one-sided view” expressed by EFF.

MP3tunes founder Michael Robertson fought the industry a decade ago with his previous company, MP3.com. (After the major labels successfully sued MP3.com, Universal Music Group turned around and bought it for $385 million.) Last year, Robertson sold his web-based calling startup Gizmo5 to Google for $30 million, giving him the resources to mount a defense against the litigation-happy recording industry.

“Court proceedings are supposed to be open to the public and concerned citizens or organizations should be allowed to make sure their voice is heard on issues that can affect them,” Robertson, who is personally liable for massive damages in the case, told Wired.com by e-mail.

The case is in the summary judgment phase. Opposition briefs are due Wednesday. Oral arguments could begin in January.

Opposition to Motion for Leave to File Amicus Brief

Authors: Sam Gustin

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