Last week in an interview with CNET, Michael Robertson talked about how his TiVo-for-radio service DAR.fm is good for the radio industry. DAR.fm lets subscribers record shows from a listing of 5000 stations and 20,000 programs. Those shows are then streamed or downloaded to a personalized list of devices.
Robertson’s goal is to build a better distribution platform to keep radio relevant. No stranger to the idea of ruffling a few feathers, Robertson is well known to the industry as the guy that built MP3.com and got sued by all the major record labels for copyright infringement. He later sold the service to Vivendi Universal for $385 million.
Now Robertson’s pursuing his vision with DAR.fm, focusing on the intersection of technology and the radio industry. “It’s going to be fascinating to see what happens in the radio business over the next three to five years,” Robertson said last week in an interview with CNET. “This is a car accident waiting to happen. You have traditional broadcast radio, Sirius XM (satellite radio), and the Internet start-ups such as Pandora. They are all approaching the audio business with different assets, different royalty structures, and they’re going to realize that they’re all in the same business. They think of themselves as separate right now but everything is going IP.”
On April 15th RAIN Summit West will take place in Las Vegas and host an entire day of interesting conversations about topics like this. Michael Robertson will participate on a panel called The Streaming Music Landscape. Other interesting panels include Innovating the News/Talk Format Online, Personalizable Radio, Charting Digital Audio Ad Dollars, and others. You can get a look at the complete agenda here. See you there!
This is a guest post by Angus MacDonald, General Counsel at Live365, Inc. regarding a recent court ruling that could have significant impact on the streaming audio industry.
Cloud-based music services can heave a sigh of relief. MP3tunes, the cloud locker service founded by Michael Robertson, scored a partial victory in the copyright litigation brought by EMI. In his August 22nd decision, Judge William H. Pauley III agreed with MP3tunes that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protected it against many of EMI’s infringement claims. The decision represents a significant victory for other cloud-based music services – such as Google, Amazon and Dropbox – who should have renewed confidence in operating their cloud services without a license. Though the decision sets a beneficial precedent for cloud-based music services generally, it is a mixed result for MP3tunes as the court also found both the company and Robertson liable for copyright infringement on some of EMI’s claims.
MP3tunes allows its users to store music files in personal online storage lockers and then to play those stored files from Internet-connected devices. MP3tunes also operates a second website, Sideload.com, that permits users to search for free song files on third-party websites and then “sideload” those songs, which would be saved to users’ lockers. EMI, along with fourteen record labels and music publishers, filed this lawsuit in November 2007, claiming a laundry list of violations of copyright and unfair competition laws.
Yesterday’s decision turned largely on whether MP3tunes is eligible for the DMCA’s “safe harbor” protection, which shields qualifying online service providers from copyright infringement for content uploaded (or “sideloaded”) by their users. To qualify, online services must follow the rules set forth in the DMCA, including expeditiously responding to takedown notices from copyright holders. The court found that MP3tunes – for the most part – complied with all of the DMCA rules and, therefore, was largely immunized from liability.
However, MP3tunes and Robertson did not completely avoid liability. Shortly before filing this lawsuit, EMI sent MP3tunes three takedown notices that identified specific song titles and URLs to be removed. Although MP3tunes disabled the links to those songs, thereby preventing more users from downloading them, it did not actually delete the songs from the lockers of its users who sideloaded the songs from those links. (MP3tunes claimed that it would be subject to lawsuits by its users if it removed property from users’ lockers.) The court held that MP3tunes did not do enough when it failed to remove the sideloaded songs from users’ lockers.
As for Robertson, the court ruled that Robertson was “directly liable for the songs he personally sideloaded from unauthorized sites.” This finding is somewhat confusing based on the court’s earlier statements that “there is no evidence that MP3tunes executives or employees had firsthand knowledge that websites linked on Sideload.com were unauthorized.”
There are several key-takeaways from this important decision. First, this decision provides significant legal cover for cloud-based music locker services to continue providing their storage and play-back services without obtaining a license. (When Amazon and Google launched their respective cloud services earlier this year, the record labels were “upset” and clamored that licenses were necessary.) While the decision does not specifically address the legality of MP3tunes’ music locker business model or other similar cloud-based services, it is clear that MP3tunes would have completely escaped copyright liability if it had removed the specific songs listed in EMI’s takedown notices from its users’ lockers.
Second, the ruling re-affirms the DMCA as a powerful shield against copyright holders, who claimed that the DMCA did not apply to MP3tunes. As the court observed, “the DMCA does not place the burden of investigation on the Internet service provider.”
Third, the decision appears to let MP3tunes off-the-hook for its storage process, which eliminated duplications of the exact same music files so that only one copy of a particular file would be stored on its servers and then streamed to its users. Google and Amazon took a different approach when they launched their respective services as both companies require every user to upload every song, regardless of whether other users had uploaded identical files, thereby resulting in an enormous consumption of bandwidth and storage space.
Finally, the ruling indicated that playing back songs stored in a user’s digital locker was not a “public performance” requiring a license, contrary to EMI’s contentions. This holding was a natural extension of an earlier decision – commonly referred to as the Cablevision case, which determined that a public performance license was not required for the play-back of television shows that were stored on a remote DVR at the direction of Cablevision’s subscribers.
The EMI v. MP3tunes case, however, is not over. While the decision disposes of some claims, several issues (such as damages) still will need to be tried – unless there is a settlement. The range of damages is $750 is $30,000 per work infringed, and can increase to $150,000 per infringed work if there is a finding of “willful” infringement. Because there are at least 350 works at issue, the damages could exceed $50 million dollars, though that result is highly unlikely. And, barring a settlement, one can certainly expect an appeal of this decision. But, in the meantime, the decision provides some important clarity and leverage for cloud-based storage services that may have been considering the daunting process of negotiating with labels (and other copyright holders) for the right to store and play-back their users’ lawfully-obtained digital files.
A copy of the decision is available here:
Your comments are welcome below. You can reach Angus MacDonald at firstname.lastname@example.org.
CBS RADIO President and CEO Dan Mason is excited about broadcasting’s digital future. In a keynote interview at RAIN Summit West last week, Mason shared his thoughts on radio’s future. During the 30 minute “fireside chat” with RAIN Publisher Kurt Hanson, Mason outlined his perspective that digital is now an essential component for success for broadcasters.
Broadcasters should embrace personalization and explore sidechannels, said Mason. He mentioned Phillies Radio as an example of a sidechannel (HD, not streaming) that CBS RADIO is pleased with. Mason touched upon some other investments that CBS RADIO has made and is planning. He encouraged the audience to find him on Last.fm, where he listens to the Yardbirds, among other things.
He also said that plans are in the works to relaunch mp3.com in May. That’s big news – mp3.com was a free music download site that got into legal trouble with the record labels over licensing. Its history includes a huge IPO and eventual sale to record label Vivendi Universal, where it eventually died. CNET picked up the url, but it’s been inactive for several years. Now Mason says CBS RADIO will relaunch the site next month. A look at the site this morning shows the structure of a platform that will offer downloads, interact with Last.fm, and tie in videos, podcasts, entertainment news and more. (In an ironic sidenote, mp3.com’s original founder, Michael Robertson, also appeared at RAIN Summit later in the day on a panel discussion of The Future of Music.)
Later last week, Mason sent a memo to CBSRADIO employees that echoed the digital excitement he expressed at RAIN Summit West, commenting “never have I been more certain as to what an incredible opportunity we have before us.” and “the digital side of the business is just as important as our over-the-air operations.”
There were many impressive moments at RAIN Summit West, it was an event that in my opinion really exemplified the positive place that Internet radio is occupying. Listening to CBSRADIO President and CEO Dan Mason talk about the digital opportunity for broadcasters as a critical element to future success was one of those.
RAIN Summit West 2011, the largest gathering of Internet radio people and information, will take place on Monday April 11th at the Renaissance Hotel in Las Vegas. This will be the 9th annual event, each year it gets bigger and better, growing in scope and size along with the marketplace. (As a disclaimer I’ll tell you that I’m very involved in organizing it.)
One of the scheduled panels will be a discussion of the future of music, featuring some really smart entrepreneurs in the streaming music space. Michael Robertson, Founder of MP3Tunes is one of streaming music’s true pioneers, having founded MP3.com and sold it to Universal/Vivendi will be on that panel. He will be joined by David Hyman, Founder of on-demand subscription streaming service MOG. Hyman’s past lives include CEO of Gracenote. Eric Johnson is the COO of Wolfgang’s Vault, one of my favorite online streaming places. Ari Shohat‘s Digitally Imported is one of the most listened to online stations, and he’s a sharp entrepreneur as well. The panel will be moderated by TAG Strategic’s Ted Cohen, a past record company executive and well known digital music consultant.
Need more reasons to attend? You can review the full agenda here. To save 20% on standard registration, go here and use the code AUDIO4CAST20. If you’re a broadcaster or webcaster, you don’t even need to use that discount, there’s a special rate of $79 for you. Including lunch and cocktails!
RAIN Summit West is a really great opportunity to meet people, get information and expand your expertise. See you there!
Amazon has launched a cloud based music service that allows users to store their own music in music lockers and then listen to it on computers and other streaming devices. It’s been rumored that both Google and Apple are readying similar services, so this move by Amazon puts them ahead of the pack. They’re hardly the first – services like MP3Tunes have been offering a similar service for over a year.
But moving early gave them the nifty name – they’re calling it Amazon Cloud, making it difficult for Apple or Google to use the word Cloud in their branding. I’m sure part of their thinking in launching early is to capture the word Cloud and associate it with their product.
Perhaps the most interesting thing about this new service is the legal stand that Amazon took in launching it. While rumors of Apple and Google’s cloud based music streaming platforms have been brewing, supposedly delayed by tedious negotiations with the record labels, Amazon just went ahead and did it, taking the position that the music loaded in the lockers is owned by the user and no further licensing is needed.
Michael Robertson, Founder of MP3Tunes, has been in a legal battle over such issues with the record companies. His post about Amazon’s new service on his blog cheers Amazon’s entry into the space. “I must admit, it’s great to have a giant corporate ally in the battle against the record labels that are fighting against user’s storing their personal music libraries online.”
Amazon Cloud is definitely intended to increase sales from the AmazonMP3 store. Songs purchased through the store are automatically loaded into your personal music locker in Amazon Cloud. The service is well integrated with Android, and not integrated with iPhone. It does sync with iTunes. Several reviews point out that it seems to be pretty basic, look for further developments and improvements.
Michael Robertson is one of the most active entrepreneurs in the digital audio space. He’s started, funded and sold several online companies, including digital music company mp3.com to Vivendi/Universal, and VOIP/telecom Gizmo5 to Google. He’s the founder and CEO of mp3Tunes, a cloud based music storage and streaming service.
Now Robertson has launched a new business aimed at listeners who want to timeshift online listening. DAR.fm is a service that allows listeners to store audio from their favorite Internet radio streams via its Digital Audio Recorder, and then stream it back on demand. Users can schedule using just a web browser and then listen from a PC, iPhones, Android, internet radios and other devices. There is currently a list of 600 stations to choose from, no doubt this will expand as the service gains traction.
“Radio hasn’t changed much in 100 years and young people are listening to radio less.” says Robertson. “My hope is that DAR.fm modernizes radio by making it on demand, interactive and available on more than just your am/fm devices.” He adds that this is an “alpha” service that may “stop working or behave oddly” while they are fine-tuning the service.
Robertson is right – making traditional radio more flexible for listening could have a revolutionary impact on radio listening. A tool like this could essentially give listeners some of the control that online only stations have been able to build into their platforms. Broadcasters in particular could benefit – since their streams are often simple retransmissions of their over the air broadcasts and don’t offer listeners any interactive options, adding the ability to skip, playback and pause the recorded material.
There is one twist – while the service itself is legal, there’s a part of the DMCA that prevents streaming stations that use the webcasting compulsory license from promoting the recording of their streams. This was probably adopted, as were many of the other DMCA restrictions on streaming, to make it harder to slice up the streams into song segments – to prevent digital piracy (though, these days, there sure are easier ways to pirate songs if one is so inclined). It shouldn ‘t mean that Robertson and DAR.fm can’t operate or listeners can’t use the service, but it could impede stations from promoting it. Which would be a shame since it’s an interesting tool that could grow audience. On the other hand, perhaps the record labels will understand this and let it be…
Michael Robertson thinks people should be able to listen to their digital music anywhere on any device. That’s exactly what MP3tunes sets out to do.
Robertson, the founder of MP3tunes, is a huge advocate of cloud based music services. He’s no stranger to the vengeance that record labels have when it comes to protecting digital song copyright law (as they define it.) In fact, he’s actually taken it on the chin before against the record companies – in the late 90’s he founded MP3.com, which he eventually sold to CNET after losing an expensive legal battle with Universal. His new service MP3tunes is currently involved in a lawsuit with EMI over copyright infringement issues.
“I think ownership is critical important in the digital age and worth fighting for.” said Robertson. “I think consumers should be able to choose where they want to use their digital property as they can with their physical property. I don’t want a corporation to be able revoke or limit access – as we’ve seen happening with Apple and Amazon.”
MP3tunes currently has over 500,000 registered users who upload their entire music collection to servers and access it from wherever they want. MP3tunes works on multiple smartphones platforms: Android, iPhone/iTouch, (iPad version waiting for approval) and many Internet radio devices (it’s compatible with devices that use vTuner and Reciva firmware.) This week they’ll introduce a deal with Roku that will enable access to music lockers on televisions.
Currently, the business model is a freemium model that offers listeners smaller sized lockers for free and charge a subscription fee for more storage space. But additional revenue sources like e-commerce and advertising may be in the cards as well.
Michael Robertson doesn’t mince words when he talks about the flawed business model that Internet radio must operate under. Robertson, a high tech entrepreneur, founded mp3.com, a digital music service that did not survive mostly due to copyright lawsuits by the music industry. He’s no stranger to the licensing game, and he pushes the envelope, believing that current webcasting royalty rates are prohibitive to a successful streaming business model.
Now he’s launching an Internet-radio-like service that he says won’t have to pay those royalties. “The crushing financial obligations which ate up 60% of Pandora’s total revenues last year do not apply here.” says Robertson. “Because this is the user’s own music we are not required to pay webcasting royalty rates.”
byo.fm will use Robertson’s other music platform mp3tunes.com to store a listener’s personal music collection, and stream it back to them, along with many other features that radio listeners find appealing, such as news, weather and sports, culled from the user’s favorite websites and delivered in a voice that they choose by text to speech technology. The service puts the user in the driver’s seat – letting them design playlists as well as news and talk features, and listen from anywhere with a connected device.