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Companies provide popular online streaming services but face copyright challenges under the DMCA

By Marina Shvarts – Edited by Chinh Vo

The rising popularity of online music and video streaming is raising questions concerning what exactly is considered copyright infringement under the Digital Millennium Copyright Act (DMCA). Slight variations in business models can lead to distinguishable precedent and unclear case law. As a result, some companies are attempting to negotiate licensing agreements, while others believe that their models are legal and do not require licenses. Below is a summary of some of the major service providers and the legal challenges they face. 

Grooveshark Lawsuit still pending, but some music labels willing to negotiate. Grooveshark allows users to stream songs from its library or upload their own music and share songs or playlists with others. Grooveshark’s music library consists entirely of user-generated content, which makes Grooveshark legally vulnerable for copying and reproducing infringing content uploaded by users. Grooveshark reached a licensing deal with EMI, but a lawsuit brought by Universal, complaint available on CNET, is still pending. Amidst the legal battles, TorrentFreak reports that Apple and Android have stopped selling Grooveshark mobile apps.

Turntable.fm – Believes that its services are legal despite lack of direct licensing deals with record labels.

Turntable.fm, popular for turning music sharing into a game, allows users to stream music for up to four people in one of the site’s ‘rooms’ and rewards users for playing music that others like. Turntable’s music library consists of content available from MediaNet, which has licensing deals with recording labels and rights to over 11 million songs. However, if a file that users want to share is not available on Turntable’s library, users can upload their own music. According to All Things D, to avoid copyright woes, Turntable is trying to legallyoperate as ‘non-interactive’ web-radio. The service believes that restrictions it imposes, such as limiting the number of times users can play a song or preventing users from playing songs in a room by themselves, protect its operations under the DMCA. There are no pending lawsuits against Turntable, but it is unclear whether Turntable’s model will keep it out of legal trouble for long.

Spotify – Recently announced ASCAP licensing deal to complement existing agreements with record labels.

A newcomer to the U.S. market, Spotify is a music streaming service that allows users to search for and listen to songs from its library of more than 15 million tracks, create playlists and share the playlists with others. Premium subscription features allow users to access Spotify on their mobile phones and remove restrictions on the number of times songs can be played. The American Society of Composers, Authors and Publishers (ASCAP) has just granted Spotify a license to stream more than 8.5 million musical works. There are no pending copyright lawsuits against Spotify.

Zediva – Claims its video-streaming service does not constitute “public performance” under the DMCA.

Zediva is a streaming movie rental service that is able to provide new release content earlier than rivals Netflix or Redbox because it does not have restrictive licensing agreements with major studios. The studios have filed an infringement suit, covered in detail on theCopyright & Trademark Blog. Zediva argues that its service does not meet the definition of a public performance protected under the DMCA because it streams content from a physical DVD, rather than streaming a digital file, like Netflix, and users watch the movie in the privacy of their own living room. Zediva claims that its digital video rental service is legally equivalent to renting a DVD from Blockbuster. However, the DMCA’s broad definition of public performance, which includes transmitting a work to the public by means of any device or process, regardless of whether the members of the public view the performance in the same place or in separate places or at the same time or at different times, may create an uphill battle for Zediva.

Cloud Music (Amazon, Google and Apple) – Different licensing approaches indicate that licensing requirements laws are unclear and signal legal battles ahead.

Cloud-based music services, which Amazon, Google and Apple have recently introduced, allow users to store music online and to play back the music on any device. According to NPR, companies providing this service can run into legal trouble if users upload unauthorized content. Amazon and Google believe that licensing deals are unnecessary because they act simply as storage providers and are not responsible for policing user-uploaded content. Apple, on the other hand, has been negotiating licensing deals with the major record labels. Ars Technica reports that these companies have an eye out on the outcome of a pending lawsuit against MP3tunes.com, a provider of a similar service.

Marina Shvarts is a 2L at Harvard Law School.

Posted On Aug - 8 - 2011 Comments Off

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