For almost 6 years now, Grooveshark, the previously fee-based interactive music streaming service, has walked a fine line between willful copyright infringement and legally acceptable, albeit morally bankrupt, behavior. In an attempt to explain Grooveshark’s precarious position in the legal world, Grooveshark Senior VP for External Affairs stated the following:
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. 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.
As part of Grooveshark’s business model, users are allowed, and even encouraged, to upload digital copies of sounds recordings (of which the current copyright status is unknown) to fill their own personal music library. In this library, users can collect and copy an infinite number of songs from Grooveshark’s servers to their own library for easy access. Collectively, each user’s uploaded library is then available to any registered user. This is accomplished through use of Grooveshark’s proprietary software application known as the “sharklet,” which scans the uploaded file for song information and then copies the file from the user’s computer to its own servers (I’ll talk more about this later). Any subsequent user who wishes to obtain a copy of the aforementioned sound recording can then simply search Grooveshark’s databases for that song.
As of last month, it’s estimated Grooveshark’s catalogs contain well over 15 million sound recordings available on demand, and while Grooveshark claims these tracks are licensed, it’s beginning to seem more and more like that isn’t the case. Universal Music Group, the largest of the ‘Big 3’ (was 4 prior to UMG’s purchase of EMI) remaining record companies, recently spoke out against Groveshark, stating that they had reached no such licensing agreements nor has anyone at Grooveshark ever contacted them for any negotiations. Based off some research (done by yours truly), it seems entirely plausible that Grooveshark’s catalog is made up of roughly 45% UMG material (don’t ask how long this took…). Assuming the estimate about Grooveshark’s catalogs now surpassing the 15 million mark is correct, it’s indeed possible Grooveshark has over 6,175,000 unlicensed songs from Universal Music Group alone. Bear in mind that that’s still less than half of all the sound recordings present on Grooveshark’s servers.
How do they get away with this you ask? Well, as Grooveshark VP of External Affairs, Paul Geller, discussed above, the DMCA, or Digital Millennium Copyright Act (see my article on SOPA & PIPA for more info) allows for certain safe harbor provisions that can protect sites against copyright liability if they adhere to and qualify for an established set of guidelines. The question here is whether or not Grooveshark is using these provisions in the DMCA as a means to avoid paying licensing fees, and in turn, profit directly from their unlawful activities. UMG alleges that in addition to “selling advertisements that are displayed in conjunction with the sound recordings it unlawfully copies and distributes,” Grooveshark’s also guilty of “selling monthly subscriptions to users with the promise of greater access to infringing music.” Grooveshark, on the other hand, states that due to the fact that much of the content hosted in its libraries are user-generated, they cannot possibly be held liable for the content (which is therefore essentially uncontrollable, if we follow Grooveshark’s rationale) and take down illegally uploaded content in a timely and efficient manner.
While it is true that the DMCA’s Safe Harbor component was designed to encourage technological innovation, and that if it weren’t for this notion, many of the products and services that are now responsible for curbing piracy might not have been created due to potential legal ramifications at the time of their origin, Grooveshark seems to be far more interested in increasing their own self worth as opposed to solving many of the problems plaguing content producers today.
For most, filing a DMCA takedown request against Grooveshark is an unbelievably infuriating process that results in an indefinite period of time before your claim will ever be acknowledged and the chances of your music ever being removed, almost nonexistent.
“… there is no way in hell you can get your stuff down. They are already tagged since you [referring to the band King Crimson] sent in your first complaint. The administration knows that you can’t afford to sue for infringement.” – Anonymous Grooveshark Insider