Michael Robertson Tempts Copyright Fate Yet Again With DAR.fm

from the power-of-the-possible dept

I used to joke that every company founded by Michael Robertson had a very simple "marketing plan": get sued by someone big. So many of his startups ended up in lawsuits with big names, which helped generate even more attention for them. But, of course, part of the reason for that is that he continually stretches the technology to do what it obviously can and should be able to do, well before the law (and legacy companies) adapt to handle such things. It's why many people have been pointing out that for all the hype around Apple's new "Music Match" service, it sounds remarkably like what Robertson did a decade ago with MP3.com.

Speaking of Robertson and lawsuits, Robertson's MP3tunes.com is still engaged in its big legal fight with EMI, which may help determine the legality of online music locker services, but Robertson clearly isn't waiting around for that. Built on top of MP3tunes.com, he's also launched DAR.fm, which is effectively an online DVR for all internet audio/radio. You can just set up what you want to record, and the site records it and stores it in an MP3tunes locker. At first I didn't think there was all that much interesting here -- the world already has podcasts, and did it really need a way to record online radio separately? However, things get a bit more interesting when you dig into the details, and you realize there's an interesting copyright situation... and a potential lawsuit waiting to happen.

As David Pogue pointed out in his review of DAR.fm, beyond just recording the shows, it has an interesting feature:
Actually, maybe this part is even better: Many radio stations transmit the names of the songs and bands they’re playing. DAR.fm captures that information and detects song breaks. In other words, if you record a day or so of a music station, you’ve suddenly got a tidy list of songs, identified (and sortable) by title or band. You can listen to individual songs, skip the turkeys and otherwise enjoy your totally free song collection. It’s crazy cool, like a hybrid of iTunes and satellite radio.
Of course, there have been desktop software products that have done the same thing for ages. But automatically dumping the mp3s into a music locker, which -- unlike the Google's and Amazon music locker that have launched recently -- actually lets you download the mp3s in your locker, is something the labels surely won't like. In fact, lots of folks are predicting that lawsuits are on the way:
Internet entrepreneur Michael Robertson has just launched his own economic stimulus program. He’s going to provide jobs for a lot of lawyers.

That’s because Robertson has created a new online service called DAR.fm, which delivers a new way to listen to Internet radio streams. DAR.fm is a digital recorder for audio streams, capturing your favorite Internet radio shows whenever they’re broadcast so you can listen to them later. It works, it’s wonderful, and it’s very possibly doomed, because the world’s leading music recording companies will probably come after it with every attorney they have.
But, here's the thing: does such a service actually infringe? It's pretty clearly established that basic time shifting, such as with a TiVo, is considered legal. Separately, with the Second Circuit's Cablevision ruling (and the Supreme Court's refusal to hear the appeal), many consider the idea of a remote DVR to now be legal as well.

What it really comes down to is that such a service has the potential to upset the record labels (and radio broadcasters as well), but that, by itself, shouldn't be illegal. Instead this is Robertson demonstrating, yet again, what the technology makes possible, even if it's disruptive to those who don't realize that the distinction between a stream and a download and local and remote storage is basically irrelevant in an era of widespread broadband connectivity. But, being disruptive and demonstrating the power of technology doesn't make you immune from lawsuits... and judges often aren't so savvy on these issues.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jun 15th, 2011 @ 12:38pm

    Recording and storage of streaming by a third party? Sounds a whole lot like going past the rights granted to the streaming site, and past the rights granted to the customer receiving the streams.

    I think this guy is a serial idiot.

     

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      Greevar (profile), Jun 15th, 2011 @ 4:02pm

      Re:

      Wow, you just ignored all the facts and jumped straight to your conclusion! You don't like it, so it's wrong, and this guy is, therefore, an idiot?

      He's using technology to do what it's made for and doing it within the confines of the law. You are allowed to time-shift streams and broadcasts. And as far as I know, there's nothing barring you from editing that audio into separate tracks. His service does all of that for you, then puts it into a storage locker for you to access at your convenience. There's nothing illegal going on here and it doesn't violate any rights despite what you want to believe. You could do all of this on your own and there would be no fear of legal retaliation, but when someone creates something that does it for you, it suddenly becomes idiotic?

      I know what the problem is though. This is a threat to selling music as a product for profit and any threat to profit is evil. Your anachronistic thinking will not help you in this day and age.

       

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        Casey Bouch (profile), Jun 15th, 2011 @ 5:55pm

        Re: Re:

        The issue seems to be the end result. While each individual action is legal, the end result can be perceived as illegal.

        Does someone have an example of this in other scenarios? Legal actions that end with an illegal result?

         

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          Greevar (profile), Jun 15th, 2011 @ 10:47pm

          Re: Re: Re:

          Like I said, you could do the exact same thing that this service does, but manually. It's legal and no one can stop you. What his service does is automates it and provides you an additional service to store it remotely so that not only can you time-shift it, but you can also access the content from anywhere.

          What it does that may be perceived as illegal, is that it provides a new way to do what most people can already do. That pisses them off because they expect to get paid every time a new copy comes into existence (they can keep dreaming, but it won't happen). Somebody made something useful of a combination of technologies that doesn't put more money in the pockets of the content distributors, so it's automatically illegal in their minds. They actually think copyright is a law that mandates they get paid for every copy made of their content or they think it should. They made a business model around a law that can never support it, so they try to make the law fit their business model and it's failing like paper swimming trunks.

          The fact that the question has been asked just goes to show that they realize its the technology that enables them to do it and they don't have a chance of going after every single infringement individually as the law demands, so they just attack the technology to make an attempt to drag us back to the days before the internet. It's too bad for them though. They'll never turn back the clock now.

           

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    tom, Jun 15th, 2011 @ 12:47pm

    a serial idiot?

    am i allowed to record a radio station on my cassette player (or tv on my video player)?
    If i am, am i allowed to record the same radio broadcast on my new cassette player (cloud cassette player, aka DAR.FM)?

     

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      Greevar (profile), Jun 15th, 2011 @ 4:05pm

      Re: a serial idiot?

      Correct. The device and the method is immaterial. It's time-shifting and it has been found to be legal. The fact that the advertising has been removed doesn't make it any less legal.

       

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      Anonymous Coward, Jun 15th, 2011 @ 7:06pm

      Re: a serial idiot?

      It depends.

      You don't control the storage device. There is no way for you to know if your storage would be shared with others. You don't know if they are saving your actual stream, or if your stream is "compressed" by matching the songs from the list and just storing the song reference, replaying from their own lists. Etc.

      If you cannot control the device, it is easy for legal questions to be raised.

       

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        DH's Love Child (profile), Jun 16th, 2011 @ 11:18am

        Re: Re: a serial idiot?

        Well, with that line of reasoning, the record labels need to just not release any recordings. Ever.
        After all, they have no way of knowing whether those recordings will end up being shared by those nefarious fans who purchase them.

        They also don't know that those same recordings won't be used as background music in the production of child porn, so clearly they must never sell any music ever again.

         

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    Hephaestus (profile), Jun 15th, 2011 @ 12:48pm

    Smelling the blood in the water ...

    All these new innovative startups (DAR.fm, Zediva, etc) seem to realize the content companies are going to fail very soon. Zediva will make it on legal grounds. DAR.fm seems to be getting into this 2 to 3 years before the record labels fail. IMHO it is a brilliant move or maybe just lucky timing. Either way they just need to hold off the record labels lawyers for a couple years and they will hold a dominant position.

     

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      Anonymous Coward, Jun 15th, 2011 @ 12:57pm

      Re: Smelling the blood in the water ...

      While I like what your saying I have to disagree with you on the "very soon" part. They are going to fight tooth and nail for new government regulations to save them from the evil pirates, and un-licensed services such as this.

      Nothing sucks the fun out of useful technology faster than a large corporation that cannot adapt to what is happening around them.

       

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        Hephaestus (profile), Jun 15th, 2011 @ 1:08pm

        Re: Re: Smelling the blood in the water ...

        I am an optimist. Every couple months something happens that shortens my prediction of when each of the record labels will fail, or be bought up by a non-RIAA type. Right now the record labels are toxic. The only thing they have left are their back catalogs. Every year we see more indies making it to the charts without label support. Right now we have the perfect promotional platform, uTorrent apps. Someone just needs to make use of it and do an American Idol app (ie InterNet Idol, or Torrent Idol, etc).

        All in all it's beginning to look up.

         

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          Josh in CharlotteNC (profile), Jun 15th, 2011 @ 1:21pm

          Re: Re: Re: Smelling the blood in the water ...

          100% agree.

          Also the schadenfreude of these startups making a complete mockery of copyright, legacy content companies, and their armies of lawyers is just a delicious bonus.

           

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            Hephaestus (profile), Jun 15th, 2011 @ 3:47pm

            Re: Re: Re: Re: Smelling the blood in the water ...

            I don't normally get pleasure out of the misfortune of others, Karma does however make me smile in this case.

             

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      ComputerAddict (profile), Jun 15th, 2011 @ 12:58pm

      Re: Smelling the blood in the water ...

      while the record labels may fail in as short as a few years, I fear their legal teams will continue the fight with the artists rights they already have in their possession.

      I'll bet the legal battles will continue for 10-15 years, even if the labels have to close up shop long before that.

       

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    ComputerAddict (profile), Jun 15th, 2011 @ 12:55pm

    "unlike the Google and Amazon music lockers that have launched recently"

    I use the Amazon Cloud Music player, I uploaded about 10 GB of music to it, and I am free to download my songs back off as much as I want. There is one limitation in that you can't select more than 500 songs to download at one time, but doesn't seem like a huge hindrance unless I lose my entire collection and need to download the whole thing again.

     

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      Mike Masnick (profile), Jun 15th, 2011 @ 1:29pm

      Re:

      I use the Amazon Cloud Music player, I uploaded about 10 GB of music to it, and I am free to download my songs back off as much as I want.

      Huh. It turns out you're correct. I have used it, but had never noticed the download option. Edited the post. Thanks for the correction.

       

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        Money Mike (profile), Jun 15th, 2011 @ 1:59pm

        Re: Re:

        (First of all, I apologize... I hit the "report" button by accident when trying to reply. I hit it again and it said it was removed, so I'm hoping and praying you won't get in trouble with yourself.)

        I'm on the other end of the spectrum. I knew I could download my songs from the Amazon cloud, but I had no idea I couldn't do the same thing with Google. That's kind of ridiculous... especially because I can't even download songs that I specifically uploaded from this computer. No wonder they offered me all those free songs right off the bat.

        I've been spending a lot more time playing with Amazon's service anyway, so I guess I'll be sticking with them for some time. The only downside I've found is that I can't edit any song info (ID3) while it's on the cloud. I have to download it, edit it, and then re-upload it to the cloud. Google not only lets me edit the song info right there, but it even lets me change or add the album art.

         

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        HothMonster, Jun 15th, 2011 @ 2:22pm

        Re: Re:

        Mike I can download from Google Music to my phone. I havnt tried to download back to my computer but in the player on my Android phone there is a store locally option.

         

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    Steven (profile), Jun 15th, 2011 @ 12:56pm

    I see the potential for a great new business model.

    Setup a service (such as dar.fm) that will attract the *AA lawyers under a limited liability company that has little to no assets.
    Gain popularity and wait for lawsuit.
    When lawsuit hits do what you can to delay while planning on bankruptcy for that LLC
    At the same time setup a new LLC, does the same service, offer users of previous LLC to 'freely migrate their data'.
    ... wait for lawsuit

    Repeat until the *AA can't even keep track of who their suing and run out of money.

    (Not sure if this is actually legally possible)

     

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    Anonymous Coward, Jun 15th, 2011 @ 1:06pm

    What it really comes down to is that such a service has the potential to upset the record labels (and radio broadcasters as well), but that, by itself, shouldn't be illegal.

    Unfortunately, "shouldn't be" and "isn't" aren't the same thing. The RIAA will tell the government, "They're breaking the law. Shut them down now, and we'll figure out exactly which law they're breaking later." And so they will.
    If the law doesn't exist, they'll simply write a law for the occasion. (See COICA/PROTECT-IP.)

     

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    Paul (profile), Jun 15th, 2011 @ 1:11pm

    Okay, skipping the fact that this cannot stand...

    ... This is exactly the product I need so I can listen to A Prairie Home Companion (PHC).

    Garrison Keillor for whatever reason won't podcast his show. I like the show, but rarely am in front of a radio for the particular 2 hours that it is aired (Saturday early evening, Sunday afternoon). My car radio has no pause button (grrrr) no mechanism to record programs (grrrr) and no mechanism to skip commercials (grrrr) which has made the radio in my car (in my opinion) useful only in its ability to play content I provided it via its audio jack.

    But this lets me listen to the handful of shows that refuse to distribute their content in the manor that I require.

    Will they lose money as a result? No, at least not as far as my use is concerned. Today, without this product, I listen to none of their content. I contribute nothing to PHC because I can't listen to it. I do contribute to podcasts that I listen to the most.

    So now they have a chance for my ear, and for my buck. Before they had nothing. This is a win/win.

    Sadly, I doubt those resisting the forces of physics and common sense will see it this way, and will seek their own obscurity with every tool provided by the law.

     

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    Anonymous Coward, Jun 15th, 2011 @ 1:15pm

    Won't work in general.

    Many radio stations transmit the names of the songs and bands they’re playing. DAR.fm captures that information and detects song breaks.

    The record industry is aware of such a potential, which is why they try to block it by pressuring stations to not put breaks between songs. Instead, stations are supposed to fade one into the other (or commercials), have the DJ talk over them, etc..

    I wondered for a long while why stations always seemed to do this, even though it annoyed their listeners, and so began personally asking station DJs about it when I got the chance. They all (about 6 so far) told me that it was to keep the record companies happy by discouraging recording. If I remember correctly, the record companies even got the requirement put into law for streaming internet stations. Of course, I imagine the radio stations themselves would rather have people listening to them all the time rather than recordings, too, so they're quite happy to go along with it.

    So much for detecting "breaks" between songs when there aren't any.

     

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      Huph, Jun 15th, 2011 @ 2:47pm

      Re: Won't work in general.

      Many radio stations transmit the names of the songs and bands they’re playing. DAR.fm captures that information and detects song breaks.

      The record industry is aware of such a potential, which is why they try to block it by pressuring stations to not put breaks between songs.


      Exactly. This has been a feature of mid-range quality CASETTE decks for more than 2 decades now.

       

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    Anonymous Coward, Jun 15th, 2011 @ 1:35pm

    live broadcasts have a whole load of legal baggage though, just look at what a nightmare the cable/tv DVR thing has been. Lawsuits have had different outcomes depending on if you watch the same content through a monitor instead of a tv.
    Even if this turns out OK, it is hard to imagine that they won't come down on him.

     

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    Michael Robertson, Jun 15th, 2011 @ 2:23pm

    MR on DAR.fm

    Thanks for the coverage Mike.

    As for the comparison with podcasts, DAR.fm is much more powerful because it gives listeners ability to time shift ALL AM/FM content. Imagine how frustrating it would be if your DVR only worked with half the stations and to get it to work with those half you would have to visit a different web destination for each. That's effectively how podcasts work and it's why podcasting has never branched beyond geekdom.

    Many popular shows don't provide free podcast such as NPR's All Things Considered, Morning Edition, Prairie Home Companion, Rush Limbaugh, Sean Hannity, etc. Some provide a podcast but it's delayed or randomly published or it's only clips. It's a complex and random experience.

    DAR.fm on the other hand "puts all radio shows into one tidy menu" according to the NYT.

    As for the legality, you correctly pointed to the Cablevision case which allowed remote capturing of broadcasted material for personal playback.

    One interesting dynamic is the music application. One justification the record labels appealed to the Copyright Royalty Board that they needed per song per user fees was because users would capture digital streams. They successfully got very high rates which gobble up 50%+ of Pandora's revenue. I'd contend record labels are being compensated for time shifting music because it was taken into account in the formation of the royalty structure. I'd also point out that most stations in DAR.fm broadcast at a very low 24k aac+ format unlikely to replace iTunes purchases which are at 256k (10X).

    If you're looking for some great audio to record from http://DAR.fm might I recommend "The Big Sonic Chill" - a fantastic music experience which will turn you onto all kinds of new music! I just found and bought this: http://www.youtube.com/watch?v=gEzdG2kqPtM

    -- MR

     

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    Mr Big Content, Jun 15th, 2011 @ 5:49pm

    Wait For The Laws To Allow It, Then Do It

    Trying to jump ahead of the legal system in this way just leads to a “Wild West” situation, which is something that never ends well.

    Look at any of those old horseboy movies, and you’ll see what I mean.

     

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    techflaws.org (profile), Jun 16th, 2011 @ 2:16am

    the world already has podcasts, and did it really need a way to record online radio separately?

    Definitely in Germany. You see, the private networks bitched a lot about the mandatory fee-finanzed public-sector broadcasters being too much of a competition so that politicians folded and ordered depublication of any such material 7 days after airdate. Also, by far not all material is available as podcasts which is why public broadcasters offer the free software "WDR RadioRecorder" which allows even unexperienced users to rip streams with ease.

     

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    mike allen (profile), Jun 16th, 2011 @ 2:57am

    No the AC who said it will annoy radio broadcasters it wont we send out a signal what happens to the audio on it we cant control.people have recorded music, shows etc since radio began. so we don't mind. even the BBC encourage it they even ask listeners for recordings of show lost from their archives.

     

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      Anonymous Coward, Jun 16th, 2011 @ 7:40am

      Re:

      No the AC who said it will annoy radio broadcasters it wont we send out a signal what happens to the audio on it we cant control.people have recorded music, shows etc since radio began. so we don't mind. even the BBC encourage it they even ask listeners for recordings of show lost from their archives.

      Nobody said "it will annoy radio broadcasters." Please learn to read (and write).

       

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    van, Oct 4th, 2011 @ 11:16pm

    Re:Re:Re:Re a serial idiot?

    Who makes the content for the labels? The artists. They are the ones who ultimately get screwed. They were screwed before the internet and now they are even more screwed. What about indie labels Greevar? Why shouldn't they be able to sell music online and not get it stolen from them? Again, the artists lose each time their music is stolen.

     

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