Often controversial US-based streaming music service Grooveshark has shared an open letter with Digital Music News refuting claims by some in the music business that its service is “illegal”. Such claims were made more publicly than usual earlier this month when the digital firm’s smartphone app was taken off Google’s Android Market platform, seemingly at the record industry’s request.
Grooveshark has ruffled feathers in the music business over recent years for two reasons. First, some label execs don’t like the way the service’s catalogue was put together, basically in the early days the platform’s users all uploaded their MP3 collections. On some levels this is very clever, it puts the onus of digitising less mainstream catalogue onto the users rather than the content owners, and, as a streaming service with file-sharing elements, is potentially a way to monetise the file-sharing phenomenon. But it does mean large parts of its catalogue came from unofficial sources.
Second, many labels claim Grooveshark is now streaming their music without a licence. EMI was first to sue over this, though the major label subsequently settled and entered into a licensing deal with the digital company. Universal Music is the major now engaged in litigation with the Groovesharkers, and seems much less keen to reach an amicable agreement.
But Grooveshark says that, while it’s true there is unlicensed music on its system, the company is operating within the rules set out in America’s Digital Millennium Copyright Act, and that it fulfils what is required for its service to be protected by that Act’s safe harbour provisions, in particular operating a takedown system allowing content owners to order unlicensed tracks be removed.
The labels’ lawyers would disagree with that interpretation of current US copyright law, and might also point out that even if Grooveshark is protected by the DMCA in its home country, those safe harbour provisions do not apply in Europe, where Grooveshark is also accessible.
It is presumably these sorts of arguments that the major labels gave to both Apple and Google when they pressured the digital media giants to take the Grooveshark app off their respective app stores. But, says Grooveshark’s Executive Vice President of Strategic Development Paul Geller, those arguments are flawed.
In the letter shared with DMN, Geller says: “Google hasn’t specified what it was in their ‘Terms Of Service’ that we allegedly violated [so that our app was removed from the Android store], but there does appear to be some confusion about whether Grooveshark is a legal service. So let’s set the record straight: there is nothing illegal about what Grooveshark offers to consumers”.
Justifying that claim, he continues: “First, there is a distinction between legal and licensed. Laws come from Congress. Licences 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. 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”.
Expanding on what the DMCA’s safe harbor is all about, he says: “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”.
But Grooveshark does have licences too, Geller is keen to add: “With that said, Grooveshark doesn’t just rely on the protection of the law. We have worldwide licensing from over a thousand labels – large and small. We pay the three major US performing rights organisations, as well as some international bodies, and are actively pursuing agreements with those that we don’t. [Meanwhile] we’ve taken down over 1.76 million files [where we do not have a licence] and suspended upload privileges to 22,274 users. These are not the characteristics of a company ‘dedicated to copyright infringement’”.
He concludes: “In light of the recent misleading press concerning Grooveshark’s application, it is important to make clear that we will defend our service, and the letter and the spirit of the law, in court and in Congress”.
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