Michael Robertson is no stranger to legal threats from the music industry. The founder of MP3.com fought a landmark case against Universal Music Group in the 1990s over digital music copyrights, which MP3.com ultimately lost. He was taken to court again by the music labels a couple years ago as the CEO of MP3Tunes, and now he is raising the ire of the radio industry with his latest startup, DAR.fm. He just received a cease and desist letter from Univision (embedded below) for making it possible to record 26 of its radio stations.
Dar.fm, which stands for Digital Audio Recorder), allows consumers to record Internet radio streams and listen to them later. “It’s a TiVo for radio,” argues Robertson. There are 16,000 radio shows from 5,000 different AM and FM radio stations listed on DAR.fm—everything from NPR’s Fresh Air to Rush Limbaugh. Users can find radio shows on DAR.fm and record them for later playback.
But isn’t that the same as rebroadcasting copyrighted content? Contacted for comment, Robertson writes in an email: “We don’t believe people recording broadcasts is a copyright infringement—even if done via a cloud service… . It is not rebroadcasting just like your VCR is not rebroadcasting. It is personal recording. Courts have consistently ruled that personal recording of broadcasts is not a copyright infringement and does not require a license. This is why consumers can have and use a Tivo/DVR. DAR.fm is simply the identical service for radio.”
Univision’s lawyers don’t see it that way. In its letter, they write: “we disagree with your characterization that your website allows users to record audio content in the same way that a DVR allows recording of audiovisual content for purposes of time-shifting.’ What Univision takes particular issue with is a new feature DAR.fm launched about a month ago, which lets users download their recordings from Dar.fm to their mobile devices, including iPhones, iPads, Android phones, and Blackberries. “Clearly, you should know that by enabling subscribers to download their recordings as MP3 files, your website is essentially opening the door for users to engage in copyright infringement, since unlimited copies can be made from downloaded MP3 files and then distributed to others.” Univision is demanding that all of its radio stations be removed from DAR.fm’s listings and blocked from being added to user’s personalized station playlists.
Just as with MP3.com, which got in trouble for copying songs on its servers, the issue here seems to be the ability for user’s to copy and download recordings of the broadcasts to their own devices. But this is a murky legal area because if it is legal for people to record radio shows to their own devices, why shouldn’t that protection extend to the cloud? And vice versa, if they keep a personal recording in the cloud, why shouldn’t they be able to download that to a device as an MP3. If they then go ahead and rebroadcast that recording, then the copyright laws would kick in, but DAR.fm does not allow for rebroadcast via its service.
“DAR.fm is bringing radio into the 21st century, by giving it the same capabilities that TV broadcasting has: time shifting, interactivity and portability,” argues Robertson. “The last decade is proof that time shifting TV was a great boon to the TV
industry. People watch 40% more TV now than 10 years ago and much of that credit is due to the DVR. Would anyone even know or watch Pawn Stars on the History Channel without a DVR?” Well, he does have a point about Pawn Stars.