The bottom line is that CBC sees you selling an application the sole purpose of which is to play their content and it competes with their application which does the same thing. Further they have stated in clear and bold language that such exploitation is not a right they are willing to share.
That's a pretty straight forward case.
Some folks here are posting 'but doesn't the radio infringe?' and the answer is no, since they have an agreement with the radio and radio manufacturers. But if the radio manufacturer created a radio (for example) that let you listen to CBC broadcasts, and when it detected a commercial it 'blanked out' that signal and filled in its own commercial. Well that would be pretty exploitive would it not? If your a content provider you prevent that from happening by aggressively shutting down anyone who doesn't go through an approved path. (like a web browser)
The OP isn't doing any of that, he just wants a decent way to listen to these guys, but from a legal perspective his 'repackaging' is no different than if it had been for more nefarious reasons, and if they don't shut this guy down then some bad guy will build their own custom player with some more obviously exploitive use and point to this guy and say "Unfair, you didn't shut him down, are you being unreasonable here?"
The correct 'answer' here is that you meet with the business development folks at CBC and you explain to them your 'problem' (crappy flash player yadda yadda) and your 'solution' (custom widget) and say to them "What would it take to have you on board with this?" You could offer them pre-release review rights for your app, a cut of any revenue from sales, etc etc. Its a twisted world though, be prepared for people who believe contradictory things at the same time.
There is also rule making about what radio broadcasters have to pay to rights holders when they broadcast said content.
And importantly, the FCC at least (and probably the Candian equivalent) don't put 'streaming audio' over the internet in the same category as broadcasting at all, rather it is a re-distribution of content. And permission to do that has no 'standard' for acquiring rights applied to it.
You need only look at Pandora's attempts early on to pay exactly what the radio stations pay to play music which was defeated in the courts. Pandora negotiated a separate contract for payments for that music.
Or to try to listen to a major league baseball game over the Internet by going to the KNBR web site and listening to their player app. (which goes silent when games are on)
Bottom line is, the content owner gets to make the rules with regards to who, how, and when their content can be consumed/received. All of this crap has been hashed out several times in the courts by several different parties.
Two things are very well established via litigation:
1) Streaming isn't broadcasting.
2) The content provider has the exclusive right to say who can or cannot use / listen / access their streamed content.
I understand that it sucks and is anathema to folks who feel like if they write an app that can pick up an audio stream and play it then they should be allowed to do that, however since I follow this stuff and its goings on I am familiar with how content owners have prevented folks from being given that right. Davander Mobile didn't understand that, because if they did their blog posting would be 'Oh darn the CBC figured out what we are doing and now we have to take our App off the App Store.' I speculated that their lack of understanding came from it being their first encounter with the world of intellectual property regulation and that was probably unfair, I have no basis for evaluating their cluelessness and should keep my speculation to myself.
1. He's charging for the application. That really moves this from a "Big content bullying little guy" to "straight forward infringement".
2. As far as I can see, there's nothing that indicates that the application was not an official CBC app. An uneducated user could have bought the original version, thinking that it's an official app, and never knew that it was not.
But for your first point, he's charging for a product. Something that can pick up internet radio streams. How is this different from a manufacturer of radio equipment charging to purchase their device.
It would seem to me that including the ability to listen radio streams other than those of the CBC would mitigate any legal issues (though I fear he'd have to start again with a new app submitted to the app store, rather than an update to thsi one) and pre-load that with his beloved CBC stations as "suggested content".
Oh, I didn't know you needed a license to manufacture radio receivers, care to provide some sources to back this claim up?
Subsequently, regulation SOR-89-253 (published in the 4 February 1989 issue of the Canada Gazette, pages 498-502) eliminated licence requirements for all radio and TV receivers, eliminating the possibility that licensing could be reinstated at the regulators' whim.
All in all, I don't really approve of his repackaging of our public content for personal profit. If he'd had to build a service to scrape the flash audio and then made it accessible via regular streams, that would justify this app's existence and price, but as it stands I find myself mildly unsympathetic.
Before, Mac users had a crappy experience listening to the streams. Afterwards, it was presumably better. He's adding value to the ecosystem - not a lot, maybe a couple dollars' worth... unsurprisingly, this is what he charges.
EDIT: Since when is HN frequented by people who dislike entrepreneurs, let alone an open web? Why are we not filing injunctions against all web browsers? iTunes? WinAmp? curl?
If the content is publicly available, then it is free. The cost of the player of this content is independent of the cost of the content. iTunes is free, Lady Gaga is not. iTunes is free, the CBC stream is free. This guy's player is not free, the CBC stream is free. Where is the confusion here?
CBC is providing the content for free so that people can listen over the Internet. If the CBC has a problem with people listening to their content over the Internet, maybe they should take it up with themselves.
A U2-branded MP3 player that only plays U2 music...
I know the joke about the guy getting upset that Someone is Wrong on the Internet, but this thread makes me want create a new private Internet where people need to show cognitive ability before opening their mouth.
From a legal standpoint, how is that any different at all? Would you say that my ISP was also exploiting CBC's content at the time?
Despite some providers' (including CBC's) fanciful claims to the contrary, I don't think or recall any court decision giving control over incoming links to parties being linked to. (Compare to decisions, however controversial, regarding outgoing links, .torrent links being the classic case.)
Now the product is just a web browser whose home page provides hyperlinks to the CBC website, just like my ISP did back in the day. When you buy the app, you are buying the web browser, not the CBC content. The CBC content is only accessible via hyperlinks which you, the user, have to specifically activate.
I get where you are coming from, but it is not clear where the line is drawn. If I create a web browser with a built-in search field that forwards the browser to Google, like many browsers do these days, am I liable to Google in the same way? What if I create an HTML form with a search field that points towards Google? What if I move the HTML form URL into an <a> tag?
HTML/etc is specifically designed to be device and program independent. At every turn developers are cautioned that users may receive only part of the content, that it may not render as expected, etc. There's even a mechanism for checking which client program is being used if you care. As they claim to...
If some downloading of the file is prohibited, they - not the users, should be in trouble. They know of the issue and aren't taking even the most basic of security steps. They're clearly all incompetent, from tech to manager to lawyer - all literally incapable of doing their jobs.
As a Canadian I want their wages refunded. And an apology to the app writer. We pay for CBC either way, the more people who hear it the more worthwhile those tax dollars are.
Hulu already blocked things like boxee based in their custom browser. A better solution for CBC would be I just block to app's access by the user agent.
(I'm not saying you are wrong - just taking it to the extreme)
[I am not the OP, just creating a scenario]
To listen to the content they are streaming on their website, you need to make a copy of it. Now, you could argue that, by creating a URL which will stream that content to any program that asks for it, they have implicitly given everyone permission to copy it in order to listen to it, but I'm not sure that's legally sound, particularly given that AFAICS, the only way in which they publish that URL is in the context of the specific player on their website.
(Now, as a publicly-owned broadcaster, the CBC should be streaming its content in a way that allows anyone - or anyone in Canada, anyway - to access it how they choose; but that's a somewhat separate question.)
If you're on my lawn selling lemonade, I don't have to "ask" you to stop. If I tell you to stop, you'd better get your butt off, because you're trespassing. Same concept.
Also, it is true the CBC has a right to ask him to stop and that Apple has a right to remove the app at their discretion, but it is not necessarily true that CBC has a legal right to force him to stop. If the app is legal, Apple's policy of removing illegal content is being misapplied to this app.
Edit: Since I received a downvote from a petulant person I will try to explain further. As the writer of this piece explains, his app is basically a paid web browser that only works on part of one site. There is nothing wrong with writing a web browser, charging for a web browser and optimizing it for CBC content.
Now due to CBC's disclaimer on the content they have the right to refuse people from repackaging their content as it abstracts the source of the data. Should the owner (OP) misuse this content in some way there is a chance that CBC become liable. CBC would not sue Mozilla for providing access to the stream within their browser because the stream is not repackaged with non-CBC logos or misrepresentation of their logo. I would wager however that they would pursue a website that embeds the stream and collects revenue from it.
Arguably CBC wouldn't care if he gave it away but since his application would not exist without the CBC Radio content they have a decent grounds for suit against him. The author plays the pity card by trying to sell us the idea he did it for convenience but in reality he aimed to profit from the app. We know this because of his refusal to stop and use his tool privately and his strong attempt to continue profiting from the app dispite legal tension.
The long story short is that the author may have grounds to stand on legally if he got a good enough lawyer to spin his version of the truth but as things stand right now CBC is looking to defend itself legally against any potential liability resulting from 3rd parties profiting from their service.
There is a legal difference between distributing someone's content oneself and linking to it. However, I will grant you that CBC's ToS says:
"CBC/Radio Canada reserves the right to prohibit or refuse to accept any link to the Web site...You agree to remove any link you may have to the Web site upon the request of CBC/Radio Canada."
Of course, that is not the allegation being made. The question is when a web browser crosses from "neutral tool to serve web content legally" to "proprietary tool that serves web content illegally." The for-profit nature of the app has nothing to do with it because there is nothing illegal about charging money for a web browser even though it's not done. The issue is how incompletely the intended web experience is rendered before it is infringement, and I do not believe that stripping out everything from a webpage but the links is infringement so long as the content is legal and the trademark is not being violated.
Would that be subject to similar legal issues?
I may or may not have just released one :-).
Edit for more insight:
Here's my app - http://endlesswhileloop.com/apps/dial
Snowtape - http://vemedio.com/products/snowtape_phone
Radium - http://www.catpigstudios.com/
Both of these are great apps with their own built-in Internet radio directory that I assume they built on their own with or without stations' permissions.
None of those are charging for the access. And I think that is the only reason for CBC's aggressive approach.
It's like a paid browser (http://www.icab.de/index.html), the web content is free, but the software ads value somehow and costs money.
I hope someone can stand up to this kind of bulling and get this issue in court and decided on.
The software only allows access to CBC content. I don't see any way of adding additional streams to the list. That's what they're objecting to, probably.
Sure, but you'll still have to pay for the parts to do so.
Technically, the user had to buy their phone too. That doesn't convey any special powers to the user to see/view CBC videos. (if any were needed)
This has nothing to do with licenses.
What he should do is completely remove the app, to satisfy CBC and Apple. In a couple of months, simply create a new app that does the same thing with no reference to Canada or CBC or anything. In the description, mention it will play X, Y, and Z, and on the web page, mention you can play CBC streams by pointing to the URL.
This seems legit to me.
The CBC is right. They're embarrasing themselves but they're right. Just because they have the right to take their ball and go home doesn't mean they'll make many friends in the neighborhood doing so.
2. On the screenshot you can see four stations, not one. They are from a single broadcaster, but they are different "stations" (URLs).
3. How does the number of stations make any difference?
I'm going to sidestep all the obvious stuff that is wrong with this ridiculous blog post and just say that it is unethical to sell an app which taps into someone else's content in a nonstandard way that you have no control over. Any time the people controlling the content make the slightest change they could break your app. And your customers are left with a lighter wallet and a suddenly non-functioning app.
If you're going to write a program that accesses someone else's services in an unsupported way, really the only thing you can do is give it away.
This is more avoidable than file formats: one can easily switch to another operating system without repercussion. Unfortunately, there aren't many good alternatives.
It's not CBC's mandate to allow their name & content to be used without permission for the profit of a 3rd party. In fact, it's directly against their best interests to allow this.
There are clearly ways to do this properly. Last time I checked Radium for OS X and TuneIn Radio for iOS and Android are still for sale and doing fine, despite offering a desktop or mobile player for all of CBC's streams AND charging for it.
Also, Cory doesn't seem very familiar with the concept of Crown Copyright. State-produced/owned documents are not automatically public domain in Canada as they are in the US; the government retains copyright and licenses such material at its pleasure. Licenses are often available for the asking, but there is no implied license.
PS. You ad hominem charge that the CBC is technically challenged is worth reconsidering.
If that turns out to be legally enforceable, the internet as we know it is over. The web is based entirely on the idea of packaging URLs from other websites.
Excluding radios (which don't repackage in the same way, but I understand the authors point) are there any precedents supporting the repackaging of public content?
All this application is is a nice interface to "curl http://radio-stream.whatever/ > /dev/dsp". If this application is illegal, so is anything capable of speaking HTTP.
I pay for my smartphone, which has software to listen to radio and Apple, Samsung or someone benefits from the sale. CBC doesn't demand them to exclude CBC.
Now if I choose to pay for another software and the developer benefits from it, what interest does CBC have here that they they don't have in previous situations ?
The matter of the fact is that Hardware/Software is different from Content. Period. Hardware/Software facilitates content. While the CBC radio content itself is free, the Hardware/Software can sell and for a profit.
Secondly, I think that they may not actually be forcing you. I suspect that if you just kept selling it, you might never hear from them again. If you do hear from them again, it won't be a summons for a lawsuit. I think you're at step 2 of about 30 steps before they file.
Before they file, they have to make sure that they have a case that is worth filing. The fact that you already complied with the tidemark and copyright issues, and that you're just enabling reception of content they are freely distributing makes the chance of the court case being a total farce very high.
While any court case, even a farce, may be more expensive than you want to bear, there is nothing to stop you from immediately removing the app from the store the moment they actually file.
But the likelihood of them having farce of a court case probably means they won't file. It would be in the news, and the news would not be sympathetic to CBC (at least if this were america...)
Personally, if I were in your shoes, that's what I'd do... wait until they indicate they are serious. Sending letters is meaningless, and all letters from lawyers sound threatening to non-lawyers. I'm not a lawyer and this isn't legal advice.
I did have a situation like that where someone claimed I was infringing, I thought it would be a farce, I simply ignored them, and they never sued. If they had sued, it would have been a media circus and I was almost hoping for that.
What would that accomplish? He would still have in hand a summons to court and a lawsuit filed against him and whatever damages they felt were owed. Assuming they are unwilling to settle, now he has to go to court to defend himself, or risk getting a summary judgement against him.
You can ignore (as a calculated risk) letters claiming you're infringing. Ignoring an actual notice that a suit has been filed against you is another thing altogether.
OK, at the time of filing, he won't have a summons, but he still has to Answer the Complaints filed.
Since anyone can get these same broadcasts via the internet, that he is letting people get, via the internet, it is kinda hard to say he's damaged CBC's ability to distribute the broadcasts, via the internet, which they distribute for free. He can't have cut into any of their sales... so the claim that he's damaged them in some way becomes kinda tenuous.