Are mix tape sites on solid legal ground?

If you're an aficionado of Twitter or the short-form blogging platform, Tumblr, over the last couple of weeks, you've no doubt become aware of the make-your-own-mix tape service, Muxtape.

A seemingly home-spun operation with no obvious profit motive, Muxtape allows anyone to upload a series of songs to its servers to create, and then distribute online, a digital "mix tape" along the lines of the ones you made for your unrequited paramours back in college.

And even as Muxtape has caught fire in the Twittersphere, another service, Mixwit, has come along, also giving users the ability to create a custom digital mix tape, but this time without uploading your own songs. Instead, you choose available songs from two existing music search services, SeeqPod and Skreemr, albeit on a much more polished site that seems primed for seeking to bring in revenue.

As my colleagues Rafe Needleman and Josh Lowensohn have noted, Muxtape appears to be a legal time bomb, merely awaiting the wrath of the Recording Industry Association of America, while Mixwit seems to exist on firmer legal footing.

But are those impressions accurate? I decided to check in with some legal scholars to find out.

"Both companies are likely to rely on the (Digital Millennium Copyright Act) safe harbors," said Fred von Lohmann, Electronic Frontier Foundation's senior intellectual property attorney. "Muxtape will be relying on the 'hosting on behalf of users' safe harbor, under the same theory that YouTube and Web hosting services use. Mixwit will be relying on the 'information location tools' safe harbor, just like Google and SeeqPod do."

In short, the safe harbor protections of the DMCA can sometimes protect Web-based services from liability related to the infringing behavior of their users. And because Muxtape didn't respond to a request for comment and Mixwit co-founder Radley Marx sent me only a short e-mail, I wasn't able to find out just how far down the safe harbor road the two services had gone. And the answer to that question seems like it could present the best hints as to the two services' chances of staying operational.

"Whether the safe harbors will cover their businesses is difficult to predict in the abstract, since much depends on whether they have complied with all the prerequisites in the statute," von Lohmann said. "But there is no reason, in principle, that they should be any more legally vulnerable than Google/YouTube. Of course, that's no guarantee that they won't be sued. There are at least a half a dozen lawsuits pending against other companies with similar Web 2.0 'hosting' or 'linking' approaches, including YouTube, Veoh, MP3Tunes.com, SeeqPod, PornoTube, and DivX/Stage6."

On the surface, at least, there can be little doubt that Muxtape presents the bigger target for the RIAA's high-priced lawyers. After all, despite the fact that it requires users to assert that they have permission to share the music they upload, we all know that not everyone who so asserts will, in fact, have such rights. Plus, as noted above, Muxtape is storing all of this uploaded music on its servers.

For his part, Marx indicated he feels that Mixwit is in the legal clear due to the nature of the service.

"We're a mash-up platform that operates as a front-end for various media services," Marx wrote me. "Our first widget, the mix tape, allows people to use existing media search engines to create a playlist of music that's already on the Internet. The playlist is just bookmarks so if a link goes dead, the track can't be played. We don't provide the ability to upload or download music, nor do we store any music on our servers."

Despite the obvious problem of letting users upload music of sometimes dubious legal origins to its servers, Muxtape won't automatically be receiving any cease-and-desist letters from the RIAA, said Eric Goldman, a professor at the University of Santa Clara Law School.

"They just don't sue every single home-brewed...Web site," said Goldman. "There are plenty of people who have launched endeavors that the RIAA hasn't sued, because they're so small. Or because they're able to take care of their issues through pre-litigation communications."

The size factor might be a savior for Muxtape. But thanks to Twitter and Tumblr and other services--as well as articles like this one, as I'm well aware--Muxtape has become quite popular among the digerati, and that can't bode well for its staying under the radar and out of the RIAA's crosshairs.

Goldman pointed me to the U.S. Copyright Office's online directory of service providers that have proactively filed for "notification of claims of infringement."

While not a full legal defense, Goldman explained, services that file with the Copyright Office and are listed on that site have taken the first step toward being in technical communication with rights holders like the RIAA, something such holders appreciate because it shows that the service providers are not trying to hide the fact that they may be hosting potentially infringing content.

However, neither Muxtape nor Mixwit had registered on the site as of Tuesday. Many thousands of other companies and services have.

Of course, especially with Muxtape, it may never have been intended to be so popular. And because it has spread virally, it may be much bigger and more visible than it was intended to be. But that won't protect it.

"There's no doubt that if it reaches a critical mass, the RIAA will intervene," said Goldman. "If you become too big that people can't ignore you, then there's the likelihood of enforcement action."

For Muxtape, at least, Goldman said, the service's best hope for staying around awhile is that it can fall under the DMCA's safe harbor provisions. But he said he doubts that its creators haven't taken the required steps to qualify for that protection.

That is most evident, he suggested, because Muxtape hadn't registered on the Copyright Office's site.

For Mixwit, on the other hand, the best defense is that it isn't hosting users' uploaded music and that it has, as Goldman put it, "a more fulsome user agreement."

Which is to say that Mixwit's terms of service are much more standard and have obviously been reviewed by a lawyer, while Muxtape's--which Goldman guessed hasn't been looked at by an attorney--is nothing more than this: "Muxtape is a service for creating mixtapes. Users may not upload multiple songs from the same album or artist, or songs they do not have permission to let Muxtape use. Individual users may not create multiple muxtapes. Accounts not meeting these restrictions are subject to termination without notice. Muxtape will never reveal your e-mail address to a third party. Muxtape is alive."

What seems funny about the two sites is that each presents some obvious problems and has some obvious protections.

For Muxtape, the problem is that it is hosting users' music. Its protection is that it is a rudimentary site with no obvious plans for trying to make money.

For Mixwit, the possible protection is that it is offering no more than an aggregation of links to content hosted elsewhere. Its problem could be that it is a much more polished site that seems geared toward building a business.

"Posting the songs themselves online is problematic," said Mark Lemley, a professor at Stanford Law School, "but putting up a list of your favorite mixes is surely not. A mix plus a link is an intermediate case, but shouldn't itself be illegal."

So what now?

There's no way to tell just yet. Much will depend on how or when the RIAA comes across the two sites, or others like them--and on how that organization interprets what it sees, when and if it does. For now, users will be able to enjoy creating the mix tapes and sharing them with friends. But don't be surprised if one day you try to use them and one or the other is gone.