by Mike Masnick
Wed, Mar 26th 2014 8:01pm
by Mike Masnick
Thu, Mar 20th 2014 7:32am
from the well-there-goes-that-one dept
The case then bounced around a bit, and with the appeals court ruling in the YouTube case, the judge in the MP3Tunes case withdrew the original ruling and decided to take another look. That's now resulted in a jury apparently finding that MP3Tunes was "willfully blind" to infringement. That's a troubling find on many levels. While the link above focuses on the jury also finding Robertson personally liable for "sideloading" songs, that part isn't all that surprising. Without thinking too deeply about it, it's no surprise that a jury would think that sideloading (moving songs found publicly online into a locker) might violate copyright law, even if it does raise some significant legal issues. Robertson made the rather valid point that it was impossible for him to know if the songs were infringing, especially since EMI itself was giving away songs for free, and knew that having such songs freely available increased sales. So to blame him for not knowing which songs were authorized and which were not seems unfair -- but the jury apparently disagrees.
What's much more concerning is this claim that an online locker service might be deemed "willfully blind" to infringement, even in the absence of things like DMCA notices. It raises serious questions for pretty much all cloud services that might store content, much of which may be covered by someone's copyright.
by Leigh Beadon
Tue, Apr 23rd 2013 1:24pm
from the letter-and-spirit dept
The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG's argument that the DMCA's safe harbors didn't apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.
Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.
There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no "rights or remedies" under common law copyright on pre-1972 recordings shall be "annulled or limited" until 2067, and it's pretty hard to argue that the DMCA doesn't do that:
Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act. Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.
For defendant to prevail, we would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, applying the rules of construction set forth above, there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless.
Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.
Take note of that last bit, because this ruling has made it more true than ever. And that's where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn't a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA's safe harbors don't apply to pre-1972 recordings, then the DMCA's safe harbors no longer apply at all to any service that includes music. That can't be what Congress intended, even if the wording of the law can be read that way.
Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.
It's a little unclear just how far-reaching this ruling will be (it's at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be "wrongly decided") but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.
by Mike Masnick
Tue, Jan 22nd 2013 8:27am
from the well-look-at-that dept
Free Promotional MP3 of one song to the public for free download from Peter Moréns album (as do most indie labels). They would offer "Social Competence" for free download on touchandgorecords.com, Peter and Touch and Go's Myspace pages, plus encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site. We are being told that historically the track which is offered for free like this is usually still the top selling track in digital retail. They would like to offer this promotional MP3 download for nine months. After that initially period the promotional partners will replace the MP3 download with a stream for the duration of the license of the album including offering a stream of the song on their website and on their Myspace page and Peter's Myspace page, or until they decide to ask these partners to remove the stream.And yet, all this time, the RIAA keeps insisting that free music is a problem? Even as employees at the labels knew years ago that free was "so effective" as a promotional technique that it helped sell the same track much more.
The label has given us a further explanation of why they pursue this strategy. One promotional MP3 per album is the best way they can virally promote the album which will increase sales and thus revenue on the compositional side as well as the master recording side. This promotional technique has proven to be so effective, that virtually every free track they have issued from an album has maintained itself as the top selling track from the album. It also enables them to offer something from the album to the myriad of sites, blogs, podcasts out there that would be tempted to give away unauthorized materials, perhaps the entire album, if they do not have the option to feature a track that they offer to them. This control mechanism is vital to their methods of slowing piracy of albums.
by Mike Masnick
Mon, May 14th 2012 9:16am
from the time-poorly-spent dept
Since November 2007, EMI Music and EMI Music Publishing have been engaged in a lawsuit with MP3tunes and its principal, Michael Robertson, in connection with Mr. Robertson's facilitation of widespread copyright infringement on MP3tunes.com and Sideload.com. These sites have built their businesses on the unauthorized distribution of music, at the expense of EMI's songwriters and artists.Here, they're simply lying. The court ruling in the MP3Tunes case stated explicitly: "MP3tunes did not promote infringement." To claim otherwise is to ignore what the court stated flat out.
Now on the eve of trial, and after an ongoing press campaign claiming that MP3tunes would fight to vindicate its 'right' to infringe, Mr. Robertson has filed for bankruptcy protection for MP3tunes in the Southern District of California. After four and a half years of Robertson's bluster and rhetoric, it is apparent to EMI that Robertson has finally realized that his case has no merit.This makes no sense, and is even self-contradictory. As they state above -- and which everyone here knows -- filing for bankruptcy does not get you out of a copyright damages award. Thus, there is no reason whatsoever for the company to file for bankruptcy "to escape liability." That's impossible. The only reason to file for bankruptcy is because the company is out of money from fighting the damn lawsuit. And it's bizarre for EMI to claim that Robertson realized his case has no merit, considering that he mostly won the original lawsuit. Yes, there were a few key points that he lost on, which may turn out to be expensive if he loses on appeal and depending on the damages calculation, but the key elements of the case were won by Robertson and MP3Tunes.
While Robertson may believe that MP3tunes will be able to escape liability in the upcoming trial through this bankruptcy, Robertson himself is still a named defendant in the case and the Court has already determined that both he and MP3tunes have infringed EMI's copyrights. As such, he is facing personal liability both for infringements that the Court has already determined have occurred and for the further alleged infringements that will be addressed at trial. Accordingly, EMI will continue to pursue its case against Robertson, to ensure that its songwriters and artists are properly compensated for their creative work.
It seems here that EMI is simply insulting Robertson out of spite. In the meantime, Robertson has pointed out that EMI spent $10 million suing him -- or more than the entire cost to build and run MP3Tunes. Remember that some exploration into how much EMI makes from Katy Perry's hugely successful album showed that the label probably ended up with about $8 million? Yeah, so basically it spent more suing Michael Robertson than it got from Katy Perry. Perhaps that money could have been better spent. No wonder the company was taken over by a bank and then sold off in pieces. Its priorities are a complete mess.
by Mike Masnick
Fri, May 11th 2012 1:00pm
from the innovation-must-die dept
We keep hearing people insist that the record labels are adapting. And it's true that they've been pulled, kicking and screaming, into parts of the 21st century. But the second that anyone comes along doing anything remotely interesting and which provides real value, they freak out and sue. And it goes beyond that. As Robertson describes in his blog post about this, EMI apparently went to great lengths to destroy MP3Tunes, even if it was legitimate:
At every opportunity EMI dragged out the legal process making it costly and burdensome. One example is the interrogation of company employees in all-day inquisitions called depositions where attorneys try to trick people into making admissions. In our case, they deposed not just management but nearly everyone in the company all the way down to clerical help and customer support personnel. They even paid $25,000 to get an ex-employee to agree to a deposition. For management they deposed everyone - some multiple times with me getting deposed 3 separate times.As Robertson notes, fighting the legal battle was one thing, but blocking the company from partnering and building out its business was the really deadly part. Robertson, of course, has been outspoken in his criticism of the RIAA over the years, and has been through previous legal battles with them as well. In part, some of EMI's infatuation with this case appeared to be personally vindictive (they sued Robertson directly as well as the company). Whether or not MP3Tunes could have succeeded may be an open question. But it seems clear that the company had no chance at all given the barriers that EMI put in its place. Of course, during this same period we've witnessed the collapse and sale of EMI (in pieces) as well. Perhaps, instead of suing the innovations that would help move it into a modern digital era, it should have been looking for ways to embrace them.
The legal pressure was not just confined within MP3tunes. EMI sent legal demands to existing partners and potential partners were told they could not work with MP3tunes or risk losing their license to sell EMI music. More than one digital company told us they wanted to work with us, but were prohibited from doing so by EMI. They used their government-granted copyright monopoly to get MP3tunes blackballed in the industry.
EMI spent an estimated $10 million dollars with multiple law firms to arm their attack against MP3tunes in an attempt to thwart unlicensed personal lockers. They know it's difficult if not impossible for startups to fight long costly legal battles. Their hope is that the startup cannot fund a protracted legal battle and they win by default. This happened with the music search engine Seeqpod, Muxtape, Favtape and many others that have quietly faded away. They know that even if the digital upstart prevails in court, they will be terminally weakened. Veoh won multiple rounds of their copyright battle outright only to be forced into bankruptcy after spending $7 million on legal bills.
by Mike Masnick
Thu, Nov 3rd 2011 12:20pm
from the the-definition-of-insanity dept
The two key points, as we discussed two months ago, were whether or not pre-1972 sound recordings were subject to the DMCA... and whether or not MP3Tunes really had a policy of dealing with repeat infringers. The pre-1972 issue is really, really important to the record labels. As we've discussed, pre-1972 sound recordings are not subject to federal copyright law, but rather more restrictive state copyright laws. Whether or not such songs are covered by the DMCA is a key element for the labels in planning their legal strategy. In Universal's lawsuit against Grooveshark, for example, it's just focused on pre-1972 songs, to try to cut off Grooveshark's DMCA safe harbors argument. But the court goes into great detail why that's a bogus argument, and that the DMCA's safe harbors were clearly intended to cover all copyrighted works, even those not covered by federal copyright law:
EMI's interpretation of 301(c) would eviscerate the purpose of the DMCA. "Where an examination of the statute as a whole demonstrates that a party's interpretation would lead to 'absurd or futile results ... plainly at variance with the policy of the legislation as a whole,' that interpretation should be rejected." Yerdon v. Henry,.... As discussed, the DMCA was enacted to clarify copyright law for internet service providers in order to foster fast and robust development of the internet. Limiting the DMCA to recordings after 1972, while excluding recordings before 1972, would spawn legal uncertainty and subject otherwise innocent internet service providers to liability for the acts of third parties. After all, it is not always evident (let alone discernible) whether a song was recorded before or after 1972. The plain meaning ofthe DMCA's safe harbors, read in light of their purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to February 15, 1972.On the second key issue, EMI's filing for reconsideration sounded stronger, when only seeing EMI's side of the story. It claimed that the judge misconstrued certain claims by Robertson and MP3Tunes employees, suggesting that the company didn't really stop repeat infringers. However, it appears that EMI's quotes were taken incredibly out of context, and the judge had no problem putting them back into context and seeing that MP3Tunes did, in fact, deal properly with repeat infringers. In fact, the judge points out directly that EMI "mischaracterizes" Robertson's deposition testimony. Having a judge catching you trying to mislead him... is probably not good for your case.
But, perhaps even more importantly, the judge makes it clear that with a music locker like MP3Tunes, there's no legal reason why the company should automatically cut off someone who is a repeat infringer, since all uploads are for personal use, and not to the wider internet.
Blatant infringers typically are those who upload or post unauthorized content, allowing others to experience or copy the work. See Viacom v. YouTube.... (finding reasonable a policy that terminated users who uploaded content after warning); see also 10 Grp., Inc. v. Veoh Networks ... (same). The record reveals that MP3tunes' users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between (1) users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and (2) users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they download violates the copyrights of others.The court also reminds that even if MP3Tunes execs discussed some sites where people accessed files and moved them into MP3Tunes own storage, and questioned whether or not they were infringing, they had no way of knowing, officially, if those files were actually infringing:
For example, MP3tunes employee e-mails reveal discussions about the legitimacy of some third-party sites and, on at least one occasion, a recommendation that a site be removed from Sideload.com. But ultimately there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on Sideload.com were unauthorized. (See Bart Decl. Exs. 64-66.) While knowledge is not an element of copyright infringement, it is relevant to a services provider's decision whether appropriate circumstances exist to terminate a user's account.This is important for a number of reasons too, including the standard claim from copyright system defenders, insisting that it's "obvious" when something is infringing and sites should have to remove the content. As this court properly recognized, it's not at all obvious. Content may appear to be infringing, but may have been uploaded by an authorized person. Or there may be fair use. Courts determine what is and what is not infringing -- and random websites are in no position to do so, no matter how much the legacy entertainment industry likes to pretend otherwise.
Amusingly, in Robertson's own blog post about this ruling (linked above), he suggests a reason for EMI's decision to continue with this really pointless lawsuit: EMI exec turnover and upheaval is the perfect situation for lawyers to rack up billable hours, because no one's paying attention:
From the outset, many have been puzzled by EMI's decision to target MP3tunes as well as me personally with this lawsuit but it becomes clearer when one understands the chaos of EMI's management and their relationship to an outside legal firm. An outside corporation performs all the litigation work for EMI. This firm doesn't care if they win or lose the case because they get paid to fight. The more they fight, the more they get paid. This explains why in this latest move they went back to the same Judge with the same evidence telling him he got it wrong and asking him to reverse his findings. Unsurprisingly this rarely works, but it's a chance for more billable hours and to increase their bills to more than $6 million. The fact that it actually makes an appeal more difficult for EMI is a plus because that means more time will have to be spent on those creating even greater riches for the attorneys.
Extensive turnover in EMI's management means nobody is there to oversee the litigation costs or strategy. Currently EMI is owned by the megabank Citigroup who is likely unaware of the runaway legal expenses or fruitless strategy since they are concerned only with finding a buyer for EMI to get their multi-billion dollar investment back. The litigation firm senses this leadership vacuum and operates unimpeded taking every opportunity to drag out what is now a 4 year legal process with countless motions. An unlimited legal budget benefits only the lawyers not EMI. Maybe it will take a new owner to rein in the attorneys, but any objective analysis shows they are hurting EMI more than helping.
by Mike Masnick
Thu, Sep 8th 2011 4:11pm
from the because-that's-how-we-shake-down-service-providers dept
Either way, the RIAA and its labels love the fact that pre-1972 recordings don't fall under federal copyright law, because it keeps songs out of the public domain for much longer -- since the mass of state laws are even more ridiculous in many ways.
One of the issues in the MP3Tunes case was whether or not the pre-1972 recordings were subject to DMCA safe harbor protection, and the court -- quite reasonably -- ruled that they were, pointing to the plain language of the law. EMI is really upset about this and insisting that there should be no safe harbors. This lays bare the RIAA's other cynical ploy in its bag of tricks. If there are no safe harbors for pre-1972 recordings, then that would mean that the labels could go after all sorts of service providers demanding cash for actions of their users. Someone uploaded a Beatles tune to YouTube? Well, according to the RIAA/EMI's argument, YouTube should be liable.
Yeah, they're getting desperate, when their remaining playing cards include figuring out ways to shake down third parties rather than improve their business model.
EMI separately argues that the court was mistaken in believing that MP3Tunes effectively disabled accounts of repeat infringers. On this point, it suggests that the court was either misled or misunderstood what MP3Tunes had done in terms of disabling accounts. The basic argument is that MP3Tunes insisted for a while that it did not terminate accounts for infringement, but then later claimed that it did -- and the court just accepted the latter argument. Here, EMI's basic claims do read much stronger, and MP3Tunes will certainly have to explain the discrepancy in statements from company employees. Either way, as expected, this case is far from over.
by Mike Masnick
Mon, Aug 22nd 2011 7:11pm
from the about-time dept
EMI argued that the company was not protected by DMCA safe harbors, claiming that it "purposely blinded itself to its users' infringement and failed to take any action against hundreds of users who sideloaded copies of songs identified" by EMI as infringing. But the court rejected that. It noted that the company "tracks the source and web address of every sideloaded song in its users' lockers and can terminate the account of a repeat infringer." Furthermore, the company did, in fact, terminate 153 accounts. Thus, the court says that MP3Tunes clearly qualifies for DMCA safe harbors. This is a good ruling and another useful DMCA win.
The court also, importantly, notes that many people sideloading content have no idea if it's authorized or not, and that it would be improper to treat them all as "blatant" infringers, especially since it's just for personal use:
The record reveals that MP3tunes's users do not upload content to the internet, but copy songs from third-party sites for their personal entertainment. There is a difference between users who know they lack authorization and nevertheless upload content to the internet for the world to experience or copy, and users who download content for their personal use and are otherwise oblivious to the copyrights of others. The former are blatant infringers that internet service providers are obligated to ban from their websites. The latter, like MP3tunes users who sideload content to their lockers for personal use, do not know for certain whether the material they are downloading violates the copyrights of others.Separately, there's an important win hidden in a footnote, in that the court ruled that pre-1972 recordings qualify for DMCA safe harbors. As you may recall, we've spoken a few times about how pre-1972 recording are generally covered by state law, rather than federal copyright law (which is why many may not hit the public domain for much longer). EMI tried to argue that pre-1972 rulings don't qualify at all for DMCA safe harbors, but the court rejected that outright, noting the "plain meaning of the statutory language."
Where EMI did score a victory is in asserting that when it sent DMCA takedown notices over links from Sideload.com, MP3Tunes should also then have to reach into users' storage lockers and delete the associated songs. I'm not sure how this fits with the statute, but the court argues that because MP3Tunes has this information (when you sideload a song to your locker, it records where it came from), it should, in fact delete them from users' lockers. Even here, EMI's legal claim tried to stretch too far. It argued beyond just the specific notices, MP3Tunes should delete "all EMI content." The court disabused the label of that notion:
EMI's argument misconstrues the DMCA and applicable case law. Even assuming the representative lists properly identified EMI's copyrighted works, EMI had to provide sufficient information--namely, additional web addresses--for MP3tunes to locate other infringing material.... EMI's notifications provided only enough information for MP3tunes to remove the noticed websites from Sideload.com and to find and remove copies of songs sideloaded from those websites. They did not identify the location of additional infringing material, let alone all of EMI's copyrighted works. Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers.Another important rejection for EMI. It tried to use the infamous "red flag" knowledge aspect of the DMCA against MP3Tunes, saying that execs for the site itself uploaded works from "obviously infringing sites." The court notes that EMI's definition of "obviously infringing sites" is quite different than what he law suggests:
For instance, the websites rapidshare.com, fileden.com, and filefactory.com, as well as other sites used by MP3tunes executives to sideload songs do not use the words "pirate" or "bootleg" or other slang to indicate their illegal purpose and they are not otherwise clearly infringing. They are simply popular file sharing sites.That's interesting given how frequently industry types love to insist that such sites "obviously infringe." Turns out a federal court disagrees. Thus, the court rejected red flag knowledge, noting that while some "investigation" may have turned up that such things were infringing, "if investigation is required to determine whether material is infringing, then those facts are not 'red flags.'" That's going to put on ice an awful lot of cases where the entertainment industry claims "red flag" DMCA violations.
The court also rejects the terms "free," "mp3" or "file sharing" are indicative of infringement, noting that "those terms are ubiquitous among legitimate sites offering legitimate services." In fact, as Robertson demonstrated via a crowdsourcing effort, EMI itself "regularly distributes works on the internet for free" (something it denied earlier). However, this undermines EMI's case:
Because of these activities, EMI's executives concede that internet users, including MP3tunes' users and executives, have no way of knowing for sure whether free songs on the internet are unauthorized.That line alone could be important, given how often the industry insists that people "just know" what's infringing. The court recognizes, correctly, that it's not so easy.
Furthermore, and contrary to the claims of some who do not understand the law, the court notes that just because you receive DMCA notices, it does not establish that you have specific "red flag" knowledge of specific infringements.
Next up, we have another really important point that has been an issue in multiple cases. The question of financial benefit. Many people -- including the Department of Justice in the Rojadirecta case -- like to claim that because infringing activity on a website draws more traffic, they have proven that the site "profits from infringement." As we've explained over and over again, this is not accurate. The rule is that they have to profit directly from the infringement, not indirectly from traffic from the infringement. Once again, the court agrees with us, and not the copyright maximalists:
However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users. Moreover, MP3tunes did not promote infringement. Rather, it removed infringing links... and terminated the accounts of users who blatantly shared copyright files with others.That line may be death for some of the lawsuits against cyberlockers out there, which all seem to assume that traffic = profiting from infringement. While this ruling may not be applicable in other jurisdictions yet, you can bet lawyers will be pointing to it, and hopefully other judges will understand this key point.
EMI then scores again in the contributory infringement claim, based on the same reasoning above, in that MP3tunes refused to remove files from lockers if they were sideloaded from sources later deemed infringing by EMI. Separately, since EMI sued Michael Robertson personally (rather than just the company), the court notes that he's liable for direct infringement of infringing songs that he sideloaded.
There are a few other side issues as well, but generally speaking, this is a big victory for MP3tunes and the safe harbors of the DMCA. It is likely that there will be appeals (perhaps on both sides), so this is far from over in an already excessively long legal dispute. But this ruling is mostly good news.
by Mike Masnick
Wed, Jun 15th 2011 12:28pm
from the power-of-the-possible dept
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
Internet entrepreneur Michael Robertson has just launched his own economic stimulus program. He’s going to provide jobs for a lot of lawyers.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.
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.
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.