No, The Supreme Court Did Not Legalize Downloading

DAR.fm Receives Cease & Desist For Letting People Record Radio Online

from the how-dare-they dept

Thu, Oct 6th 2011 4:13pm — Mike Masnick

Earlier this year, we wrote about Michael Robertson's latest project, DAR.fm, noting that he was tempting copyright lawsuit fate again. DAR.fm is basically an online DVR for radio. It lets you record and listen to all sorts of online radio programming. As we noted at the time, it seemed inevitable that someone would challenge the legality of this -- but it seemed like the Second Circuit's ruling in the Cablevision online DVR case at least presented him with a case that supported his general view that such time shifting of radio, even if done remotely, is legal.

Either way, it appears he's received his first cease & desist, which comes from Univision and is embedded below. Robertson is making his case against Univision publicly, first pointing out that it seems to be reacting the same way the TV industry did to TiVo and ReplayTV:

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision.

He goes on to make the case that such time shifting is quite common and legal. In fact, he points out that Univision is more known for its TV stations, and are they really arguing that a DVR is legal for video, but a DAR is not for audio?

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

It will come as little surprise that I think DAR.fm should be legal, but the courts can be funny about this kind of thing. Even though, functionally, it may seem identical to a DVR, having it actually go to court is a crapshoot. Still, if Univision is smart, it'll back down on this. Making their stations and programs more difficult to listen to hardly seems like a compelling business strategy.

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Filed Under: copyright, dvr, michael robertson, recording
Companies: dar.fm, univision

17 Comments

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Anonymous Coward, 6 Oct 2011 @ 4:42pm

I love the interwebs it exposes all the contradictions in the law.

It holds the feet of people responsible to the fire.

One day the interwebs will be full of Regualtion Room's.
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Anonymous Coward, 6 Oct 2011 @ 4:59pm

Abolish the FCC!! What gets broadcasted over public airwaves should belong to the public. The government has no business taking away my right to freely broadcast on public spectra and then taking my right to freely copy that which is broadcasted on public spectra.
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Anonymous Coward, 6 Oct 2011 @ 5:06pm

Re:
It should be my right to freely copy, alter, and redistribute that which is broadcasted over public airwaves and to redistribute any derivative works.

Really, it should be my right to do so over public airwaves. I have just as much a right to broadcast over those public airwaves as the government-corporate complex. The government has no business taking away my right to use public airwaves and then handing over/selling exclusive privileges over to big corporate conglomerates. We need to abolish the FCC and take our rights back.
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Anonymous Coward, 6 Oct 2011 @ 5:49pm

Re: Re:
If you just copy the signal and retransmit it, I believe the law allow it, if you don't charge anything.
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fb39ca4, 6 Oct 2011 @ 6:00pm

Theyre just jealous
They're just jealous at a missed revenue opportunity.
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Anonymous Coward, 6 Oct 2011 @ 7:17pm

Re: Re:
quote:
(a) Certain Secondary Transmissions Exempted. � The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if �

Source: http://www.copyright.gov/title17/92chap1.html#111

Yep, you can retransmit things if you want to but there are certain restrictions.
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Anonymous Coward, 6 Oct 2011 @ 7:24pm

Re: Re:
Now there is one thing, if they make the stream they own the copyrights for that, if you on the other hand is the one doing the stream you own the copyrights for it and can do whatever you want to do apparently.

Crowdsource the making of a stream and you are all good.
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btr1701 (profile), 6 Oct 2011 @ 11:50pm

DVRs
> Immediately some predicted the end of the TV business
> because people could fast-forward through commercials.
> Lawsuits put ReplayTV out of business (in spite of superior
> technology). Eventually cooler heads prevailed and the
> technology thrived to the point where nearly half of American
> households have a DVR. Consumers could, for the first time,
> enjoy their favorite programming at a time convenient for them.

This always seemed bizarre to me. Both at the time and still today, people act like the DVR was the first device that allowed time-shifting and the ability to fast-forward through commercials. The ability to do both had been around for decades with VCRs. Why did it suddenly become infringing because you were recording to a drive rather than a tape?
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Ben (profile), 7 Oct 2011 @ 1:10am

The tech already exists
I get all BBC and some other radio channels on my cable box. I can use my DVR to record them, effectively time shifting them. This is legal, and it the exact same functionality as DAR (aside from the fact my DVR records blank video as well as capturing audio).
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Anonymous Coward, 7 Oct 2011 @ 2:33am

Re: Re: Re:
but an exemption that merely helps out the primary transmitter is not what I'm referring to.
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Anonymous Coward, 7 Oct 2011 @ 2:34am

Re: Re: Re:
"if you on the other hand is the one doing the stream you own the copyrights for it"

Then you'll need a separate license, one you can't get because the government already wrongfully granted an exclusive license to someone else. No license should be required, the FCC should just be abolished.
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Anonymous Coward, 7 Oct 2011 @ 2:36am

Re: Re: Re: Re:
(that is, a separate FCC broadcasting license).
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Anonymous Coward, 7 Oct 2011 @ 2:44am

Re: Re: Re: Re:
The main thing the above covers is relaying a signal to an area that doesn't get coverage. So, for instance, if someone owns an apartment complex and the people in the complex, for whatever reason, don't get coverage (because it's a dead zone), the apartment complex owner can retransmit the outside signal to the area within the complex to help the tenants receive signal. But that's not what I'm referring to here though. This is beneficial to the broadcasting monopolist, which is the only reason these exemptions exist.
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Anonymous Coward, 7 Oct 2011 @ 4:02am

Re: Re: Re: Re: Re:
The point here is that the the main intent in the FCC's regulations are solely to serve private interests. Allowing broadcasted stations to be retransmitted over the Internet might actually serve the public interest and it might conflict with the private interests of broadcasters who want to tailor their broadcasting advertisements to regional businesses, which will generate more revenue. But it shouldn't be the FCC's job to take away my rights for the sole purpose of serving someone elses private interests. If that's their intent then the FCC ought to be abolished.
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Anonymous Coward, 7 Oct 2011 @ 5:11am

Re: The tech already exists
Yes, but you have to think past the end of your nose. Because you get it on your cable box, you are in the permitted transmission area. The original broadcaster is also likely getting paid some form of compensation for the signal getting used.

It seems more that Michael Robertson's entire reason d'etre it to try to tweak noses and abuse copyright law. If you are an anti-copyright person, you should be hating on this guy, because he seems to be serving up perfect test cases for the copyright side to keep on winning.
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Anonymous Coward, 7 Oct 2011 @ 7:43am

Did the stream broadcaster of said copyrighted music pay the ASCAP, BMI, SESAC and whatever other fees GOD has deemed good? If so then it is a legal stream. Simple! Go to ASCAP and read their license. Do the same at BMI. If it allows DVR type recording then you are legal. If not then you are not.
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Anonymous Coward, 7 Jul 2013 @ 4:54pm

Copyright is a privilege license from public servant trustees acting on behalf of the public. The license stipulates that anyone can comment on the copyrighted material and it becomes legal to manipulate it for free speech and educational purposes. If it were me I would place the copyright exemption on the site for historical, commentary and educational free speech purposes and threaten to remove the corporations license for filling out a false police report and assault by statutes not lawfully imposed. I would not forget to return a response to the cease and desist that if they threaten again you will have their license to be a corporation revoked and charge them 20 thousand silver dollars damages for threat duress and coercion.
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