Grooveshark Insists It's Legal; Points Out That Using DMCA Safe Harbors Is Not Illegal
from the good-point dept
If you talk to folks in the recording industry, they seem to insist that Grooveshark is absolutely illegal. However, the company has structured itself in a way that it believes is perfectly legal -- which is why it's now upset that Google and Apple have each pulled its mobile app from their marketplaces and has issued an open letter, explaining why it's legal and asking Google and Apple to let it back into their app stores.First, the company makes the distinction between "licensed" and "legal":
First, there is a distinction between legal and licensed. Laws come from Congress. Licenses come from businesses. Grooveshark is completely legal because we comply with the laws passed by Congress, but we are not licensed by every label (yet). We are a technology company, and we operate within the boundaries of the Digital Millennium Copyright Act of 1998 (DMCA). Some would have you believe that those of us who use the DMCA to innovate are inherently infringers and that claiming Safe Harbor under the DMCA is as good as admitting guilt. Not so.While I agree with the importance of the DMCA's safe harbors, and the idea that they are important to encourage innovation, Grooveshark is being a little misleading in the whole licensed/legal arena. It really should go into more detail. The way Grooveshark operates, is that (like YouTube), users upload content, which others can then stream. Grooveshark works to abide by the DMCA to discourage and takedown infringing material -- and notes that it has taken down 1.76 million tracks and suspended 22,274 users who abused the system. As it notes, those are "not the characteristics of a company 'dedicated to copyright infringement.'" It also pays performance rights organizations for the streaming content.
The DMCA's Safe Harbor component encourages technology companies to innovate in hopes that they will eventually solve some of the problems that are plaguing content producers today. The Safe Harbor provision reads like it was written specifically for YouTube and Grooveshark, and its necessity continues to be illustrated every day. If it weren't for this notion, many of the products and services that are now taking a bite out of piracy would never have been born.
The real issue is whether or not the users have the rights to upload the works. That's where the licensing aspect comes in. Grooveshark has been trying for a while now to get record labels to agree to effectively offer a blanket license to its users, so that they can upload those songs, and the labels can then make some money off of the usage as well. In some ways, it's like YouTube's ContentID system, in helping labels monetize their music that users are hoping to share. Both EMI and Universal Music have sued Grooveshark, with EMI dismissing the case after agreeing to a license. Universal Music is still fighting the lawsuit.
So, effectively, the way Grooveshark is structured today is that its users might infringe on copyrights, and the company keeps seeking licenses that would make those uses authorized. The somewhat open legal question is whether or not Grooveshark itself is liable as well. It claims that it follows the DMCA safe harbors and is protected (and, for that reason, I'm sure is very, very, very interested in the eventual outcome of the YouTube/Viacom lawsuit concerning the overall contours of the DMCA safe harbors). The labels, I'm sure, claim that Grooveshark is "inducing" infringement through its overall design.
Not surprisingly, I think Grooveshark presents an interesting legal situation, which should be legal under the DMCA. Unfortunately, the courts often get a little wacky when it comes to interpreting the law in these situations. If YouTube continues to prevail over Viacom, Grooveshark is in a much stronger legal position. If the appeals court reverses, however, it may have more trouble. Of course, given all this, it is somewhat amusing that Google would dump Grooveshark, suggesting a violation of its terms of service. If Google is arguing that YouTube is legal, you would think it would recognize that Grooveshark relies on the very same line of legal logic.
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Filed Under: copyright, dmca, legality, licensing, safe harbors
Companies: grooveshark, youtube
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Personally I use Last.FM, and while this is no way intended as a plug - here goes.
The 2 things I though were odd about Grooveshark were firstly how on earth could they allow full custom playlists from every song out there. Other online streaming services (Last.Fm/Finetune) only let you "narrow down" your selection of tracks and let you play tracks in a "radio" style playlist.
With Grooveshark I could put 1, 25 or 100 tracks in the exact order I wanted playback. They could be of the same artist, or from all over the place. The other "radio" services didn't let you do that.
Secondly, I did notice a lot of Grooveshark tracks that were labeled with "Track Name - www.obviouslypiratemusicsite.ru" so I thought they might have been using a "search engine" type loophole.
Now I know why, it was user uploads from the pirate sites just to promote their junk.
Strictly speaking as someone who is happy to pay for Last.FM (or a similar price for any other music subscription radio service) $3 a month is reasonable for radio. I would pay $5-10 a month if Last.FM did better/full playlists and offline playback (i.e. let me load up my mobile with tracks that I can play radio style).
Stunts like Grooveshark pull only harm the streaming music "name", making it harder for legit companies to get licenses.
An example of the ridiculous nature of the licensing agreements. In Australia not only do I have to pay $3 a month for Last.FM (no free sreaming like US/UK/Germany) I can't stream music on my Android phone like the US/UK/GER users can because apparently that is a "separate license" that Last.FM has to negotiate with the labels here.
So if I use my web browser on my mobile I can listen. But Last.FM can't allow their official app to do the same or they will get the pants sued off them. Sigh...
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But this is probably quite esoteric knowledge that I'm descending from my ivory tower with and bestowing on the commoners....
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and this is one reason why copy'right' needs abolition. Doing all this costs time and money for no good reason, it makes these services artificially more expensive and scarce, and it reduces what these services have to offer. The public ends up paying one way or another. Abolish copy'right'.
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Of course Grooveshark is inducing infringement through its overall design. Its design allows people to listen to music. Listening to music is a de facto violation of copyright!
Here, I'll write you a (bad) haiku:
Off in the distance,
you hear the music playing?
Copyright stealer!
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Re:
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Grooveshark may be wrong
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Google May Be Making A Smart Move
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Recall Napster...
Straight from wikipedia:
Addressing the vicarious infringement claim, the court then considered the necessary factors: whether Napster benefited financially from the infringement and whether they were capable of supervising and controlling infringing conduct. The Ninth Circuit sided with the District Court, who held that the infringing activity was a draw to potential users and that, since and Napster's future business model was predicated on expanding the number of users, Napster stood to benefit financially from the infringing activity. As for supervision, the Circuit court agreed in part with the District Court's finding that Napster had "the right and ability to supervise its users' conduct."[1] However, the Ninth Circuit felt that Napster's ability to patrol and enforce infringing use was limited by the design of the system itself. The system was not designed to read the contents of MP3s or check for copyright ownership or permissions, only to index by name and ensure they are valid MP3 files. Despite this departure from the District Court's reasoning, they argued that these indices and infringing files were just as searchable by Napster as they were by the plaintiffs in locating infringing files for evidence in the case. Because of Napster's failure to police within its means combined with the financial interest factor, the Ninth Circuit affirmed the District Court's finding of vicarious infringement.[1]
Grooveshark both:
1) Benefits from the infringement with its expanding user base that relies on the infringing library.
2) Does not(without a takedown request) maintain or scan its library for infringing files. Universal Music Group, who is suing Grooveshark in NY for the pre-1972 files on the libary, owns the copyrights to almost 25% of Grooveshark's libary, and has not received a penny in the three years of Grooveshark's growth. Even today, tracks EMG artists like Eminem can be found in unlicensed abundance on Grooveshark, which directly profits and gains a use base from.
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Re: Copyright is Necessary
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Re: Re: Copyright is Necessary
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