

Court Recognizes DMCA Safe Harbor in Universal v Grooveshark Lawsuit - hycomor
http://torrentfreak.com/court-recognizes-dmca-safe-harbor-in-universal-v-grooveshark-lawsuit-120711/

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citricsquid
I don't understand how Grooveshark can be compliant and/or considered
"acceptable" when companies like Youtube actively work to prevent restricted
music from being uploaded and yet anyone can upload Rihanna's latest album to
Grooveshark and they do nothing about it. How can that be considered
reasonable?

They're not even reasonable about uploading; I login to Grooveshark and go to
"My Music" and click "Upload" and it asks me to upload my library, nowhere
does it mention "oh btw if you don't own the rights don't do it", that's
hidden on the terms of service page. The language used on the upload page is
I'm sure well crafted so that they don't fall foul of the law but don't
dissuade users from uploading: "...and only upload content that does not
infringe upon the rights of others.". Why isn't that "Do not upload content
that you are not licensed to distribute"?

I must be missing something.

Edit: to clarify for anyone that doesn't understand how Grooveshark works.
They encourage users to upload their own music collection and do not at any
point explain to the user that the music they're uploading is available to
everyone or that what they're doing is illegal. Yes they're DMCA compliant but
only at the very minimum required; if they wanted to be respectful towards
labels/artists they could quite easily prevent people from uploading
unlicensed material.

~~~
skymt
Strictly speaking there's no requirement to actively filter content. YouTube
goes beyond the DMCA safe-harbor provisions because they want a friendly
relationship with Big Content. GrooveShark recognizes that their model is
incompatible with that of the record labels, so they hide in the letter of the
law. Though it is hard to see how GrooveShark could possibly dodge the "direct
financial benefit" or "red flag" tests.

~~~
citricsquid
I know it's not required, my point was more than Grooveshark are claiming that
they comply and they're great and all but they do the bear minimum, they do
enough to not get sued, but then they claim with a straight face that they're
supporting artists etc.

Artists choose to sign with a record label, Rihanna wasn't forced at gun point
to become part of Def Jam, she chose to and in return Grooveshark are
streaming her music anyway claiming that it's "for the artists" and "we comply
with DMCA so it's okay".

~~~
ketralnis
> they do the bear minimum, they do enough to not get sued

The bear minimum is all they have to do. That's why it's called the minimum.

> they claim with a straight face that they're supporting artists

Correct me if I'm wrong, but "artists" is not a single entity or trade group.
They are supporting artists that choose to use their service for distribution.
They aren't supporting Rihanna, and I'm fairly certain that they don't have
to.

> "we comply with DMCA so it's okay"

Well yeah. They do comply (as ruled here). So it _is_ okay.

Sites like reddit and HN and, yes, Grooveshark couldn't get off the ground if
they had to proactively filter 100% of submitted content. We as a society have
decided that we value that over stopping 100% of illegal copying so we're okay
with laws that work to take the content down afterwards.

~~~
citricsquid
How can you possibly compare HN, reddit and Grooveshark? The first 2 aggregate
_links to_ content, Grooveshark distributes content (often unlicensed). That's
akin to comparing IMDB and iTunes, because both have movie related content?
It's nonsensical.

If you want to use reddit as an example we'd have to pretend that reddit
downloads the content from any submitted link and serves it, so let's pretend
that happens: if a company went to reddit and said please stop downloading our
website content when it's submitted from the domain website.com, would you do
that? Would you tell them to fuck off? While profiting from that content?

Grooveshark could if they wanted without _any_ effort comply with what
companies like Universal want. They choose not to. It's not about whether or
not they comply with the law. It's absolutely not unreasonable for any artist
to expect their music not to be on Grooveshark, Grooveshark made a business
decision to use the DMCA to their advantage.

> They aren't supporting Rihanna, and I'm fairly certain that they don't have
> to.

That's fine, they don't have to support Rihanna, but what they should not then
do is take her content anyway. If they're not willing to comply with the
wishes/expectations of the rights holder (which probably isn't Rihanna but
let's pretend it is for simplicities sake) then they SHOULD NOT be making
money from that content!

Grooveshark is a business that takes other peoples content WITHOUT PERMISSION
and then makes money from that content and uses the DMCA to get away with it,
doing the bare minimum to be compliant. How can anyone defend that?

~~~
Natsu
It is nowhere near as easy as you suppose to filter out all unlicensed content
with a computer program. If you believe otherwise, feel free to create and
market such a system so that we can judge for ourselves. Google, a company who
has plenty of capable coders, wrote their own such system. It misidentified
birdcalls as copyrighted music:

[http://www.techdirt.com/articles/20120227/00152917884/guy-
ge...](http://www.techdirt.com/articles/20120227/00152917884/guy-gets-bogus-
youtube-copyright-claim-birds-singing-background.shtml)

~~~
citricsquid
if(artist.name == "Rihanna") error("You can't post Rihanna");

It doesn't need to be sophisticated to remove 99% cases of infringement. Sure
people could upload Rihanna's music under the name "Johnny John Johnson" but
then nobody would find it, so the problem would be solved. Grooveshark choose
not to do this because they are driving revenue with unlicensed music.

~~~
Natsu
Congrats, you just banned Prof. Usher's lecture notes:

<http://news.cnet.com/2100-1025_3-1001095.html>

You've also missed all the "Riana," "Rihana," "Rieana," etc. songs out there,
making your filter both harmful to innocent people and worthless at stopping
infringement.

EDIT: And this part is badly mistaken: "It doesn't need to be sophisticated to
remove 99% cases of infringement." So you have 1 copy for people to download
instead of 100. But 1 is enough for everyone, so you've made no dent in piracy
whatsoever, because everyone will copy the one file that _is_ available and
won't even care that there aren't 99 more copies of it.

~~~
citricsquid
Now you're just being intentionally stupid.

Yes, the idea of a single if statement is over simplifying, but it's an
example of how easy such a system is. If I was grooveshark and actually
building such a system I would build in common song name matching (eg: If
Rihanna is the artist name and the song is "Rude boy" then it's bad, if the
song is "Hacker News is fun!" it's probably not!

The point is, a system for matching against names of popular artists is
trivial to build, are you denying that? If someone tasked you with building a
system that could take an mp3 + title + artist and tell if it was the song of
a popular artist in a database could you not do that?

~~~
Natsu
Searching for "usher.mp3" where the artist.name = Usher is pretty much exactly
how Prof. Usher's lecture notes got DMCA'd. I'll give you credit that you
could probably ban most of the typos of Rihanna, though. But the wider you
cast that net, the more "dolphins" like Prof. Usher you're going to catch.

And you have to cast it widely to even put a dent into things, because you
only need one copy available for everyone to copy it. Just one false negative
out of millions of songs and everyone copies that one that slipped through.
They need exactly _one_ search result, not 100. Google does all that you say
and more on YouTube. Let me know how hard it is for you to find infringing
content there (hint: not very)? Sure, they play whack-a-mole with it. But that
damned mole keeps popping back up and it's not hard to find a mole that hasn't
yet been whacked.

Worse, the more you tighten up that code, the more Prof. Ushers you ban. We
have Google blocking access to bird songs already. And I know you know how
skilled their coders are.

You should have at least banned the cryptographic hashes of anything that got
DMCA'd. At least that has few false positives (assuming few DMCA notices are
false). It's vulnerable to deliberate infringers making tiny changes to the
files, sure, but I'm unaware of any solution that isn't. And you're required
to ban anyone who is a repeat infringer anyhow. But we're playing whack-a-
mole. More moles always pop up.

~~~
citricsquid
You're misunderstanding how Grooveshark works and why this would matter.

Yes, a copy of Rihanna's latest album _could_ slip through but it would have
to be hidden under a different name for that to happen, then how are people
going to find it? If you want to listen to Rihanna on Grooveshark then you
type "Rihanna" into the search engine.

> Worse, the more you tighten up that code, the more Prof. Ushers you ban. We
> have Google blocking access to bird songs already. And I know you know how
> skilled their coders are.

That's completely different though, context is important. Grooveshark is a
"free Spotify", Youtube is a video community _and_ a video hosting platform.
Grooveshark has one use case, Youtube has many. For example Youtube developers
work to catch music that is a part of a video that isn't necessarily focused
on the song, that would never happen with Grooveshark. Also external sites
embed Youtube uploads and use that to host music, can't be done with
Grooveshark.

The fact is you or I (or any slightly competent developer) could build a
system that could block almost every single possible upload that
labels/artists don't want uploaded, Grooveshark CHOOSE not to do this.

As a user you need to know what you're looking for, you need to tell the
search engine what you're looking for, if you're looking for Rihanna you don't
type "r1h4nna4534535" and so if someone uploads the latest Rihanna album with
the artist name "r1h4nna4534535" who is going to find it? Hell, even if they
did there are solutions to that problem.

~~~
mullingitover
"Grooveshark CHOOSE not to do this."

Of course they don't, it's not their job to police someone else's copyrights.
Do you think Escape's shareholders wouldn't sue the officers of the company
for breach of fiduciary duty if they discovered they were spending company
funds to prop up some other business? If you own a copyright, it's your own
job to enforce it. Why should copyright holders get to freeload off
Grooveshark's work?

------
paulsutter
Really great to see that Universal may be held accountable for their thuglike
behavior. Be nice to see some class action suits over the mass litigation
against consumers using BitTorrent too.

~~~
WiseWeasel
Grooveshark is by no means innocent here. It's hard to get around the fact
that they're distributing content without compensating its copyright holders
through mechanical licenses, and without any agreement with these copyright
holders. If it was your copyrighted content being distributed by Grooveshark
for profit, with no money going to you, you might feel differently.

~~~
rabidsnail
If you're following the law (which Grooveshark are), then you are ipso facto
innocent.

~~~
fauldsh
They're not legally guilty but morally guilty.

It's websites like Grooveshark that weaken the premise for laws like DMCA safe
harbour. Their entire business lies in using DMCA in a way in which it was
clearly not designed, making it much easier to against such provisions. It's
not only big music who might lose out because of them.

~~~
ben0x539
"Morally guilty" is hugely subjective. I'm sure it's very, very easy to find a
lot of people who would argue that Grooveshark's behavior is more moral than
that of Universal, and it's hard to argue against them without falling back on
legal arguments.

~~~
fauldsh
The question is not one of who is worse. Universal does some morally
reprehensible things, that does not excuse Grooveshark.

Grooveshark aren't for anybody other than themselves, they base their entire
business on people uploading sharing songs without giving any money to the
musicians. If a user uploads the song, not a registered artist then the artist
gets nothing and the money goes where?

As a result I believe through those actions they weaken the argument for DMCA
safe harbour provisions by showing such a clear loophole in the meaning.

That's my moral and non-legal argument against Grooveshark (but not for
Universal).

------
pvnick
I used to work for Grooveshark. It's an amazing company full of awesome people
that are really passionate about music and helping artists. I'm happy they got
this win.

~~~
res0nat0r
I'm not sure if helping artists would be a great phrase for it...How about a
list of this months top 10 streamed tracks from users in the United States?
I'd like to see how many of those tunes in the top 10 list are from actual
artists whose music is legally licensed to be on Grooveshark.

~~~
aggronn
Your anti-piracy point is one things, but are you willing to contend that the
musicians would be better off if grooveshark didn't exist? Assuming
grooveshark couldn't exist if they were required to pay licensing fees for
every song that was uploaded and listened to (which, if you've seen their
offices or knew how little they paid their developers, isn't farfetched).

------
sedev
I couldn't find this in the article: _which court_ is the decision from? The
bio of the judge[1] suggests that it's a superior-court-level decision. This
is an annoying omission to me because with decisions like this, it's important
to know what the appeals prospects are. The odds of a decision being
overturned on appeal are relevant.

[1]:
[http://www.nycourts.gov/courts/comdiv/newyork_bio_Kapnick.sh...](http://www.nycourts.gov/courts/comdiv/newyork_bio_Kapnick.shtml)

------
tseabrooks
Not clear to me from the article. Why did the universal lawyers believe the
DMCA Safe Harbor rules wouldn't apply to pre 1972 music?

~~~
res0nat0r
From another source:

A judge has handed controversial music streaming service Grooveshark a major
win in a dispute with record label Universal Music, rejecting an argument
which would make Grooveshark responsible for determining the copyright status
of all pre-1972 recordings. Arguing in a New York court, Universal had
attempted to claim that safe harbor provisions in the Digital Millennium
Copyright Act (DMCA) do not apply to recordings made before 1972, as the
recordings were not covered by federal copyright law at the time of their
creation.

[http://www.theverge.com/2012/7/11/3151127/grooveshark-
dmca-u...](http://www.theverge.com/2012/7/11/3151127/grooveshark-dmca-
universal-music)

------
grabeh
It's a novel argument to run - obviously the beauty of the judicial system is
that the court ruling against this novel argument now sets a precedent
(subject to appeal etc) that can be applied in future.

In some ways, I'm grateful to Universal for running the argument as it's one
less cause of action that can be argued in the future, or at least can be
dismissed much more easily by relying on the precedent.

------
what_ever
Wasn't there another case against Grooveshark saying the employees themselves
were uploading songs on the site?

~~~
Baba_Chaghaloo
Yeah it was based on an anonymous blog comment and I think it's still ongoing.
I asked a couple guys at Grooveshark about it and they didn't seem concerned
at all, they described it as a last, desperate move by the record companies.

------
loceng
Well that's huge news for them, I'm sure they knew this would be the outcome
though. :)

