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Universal sues Grooveshark again, with evidence senior Groovesharkers themselves upload

By | Published on Monday 21 November 2011


Universal Music is suing Grooveshark. Yes, again. And this time the legal complaint alleges that staff employed by the controversial streaming service’s parent company Escape Media Group have themselves posted over 100,000 unlicensed tracks to the Grooveshark website, and that therefore the company cannot hide behind the Digital Millennium Copyright Act.

It’s no secret that Universal, more than any other player in the music industry, hates Grooveshark, the browser-based audio streaming service, operating from the US but available worldwide, that allows users to contribute their own music collections to a central library, making it one of the most comprehensive digital music catalogues on the net, even if the majority of the rights owners whose music appears haven’t licensed the service and therefore earn no royalties.

EMI was the first to sue Grooveshark when the streaming service first began to gain popularity among American teens and college students, but the label subsequently reached an out of court settlement and licensing deal with the digital firm. Some indies have also licensed the service, getting royalties from advertising and subscription revenue. But some key rights owners – including the biggest of them all, Universal Music – have chosen not to licence Grooveshark. However, because of the user-upload option, the company’s music frequently appears in the streaming service’s catalogues.

Grooveshark management claim that America’s Digital Millennium Copyright Act protects them from liability for copyright infringement, even if they frequently host unlicensed music, because they operate a takedown system as set out in the DMCA, so that if a rights owner complains that their music is on the Grooveshark platform without licence, the digital firm will remove it.

The same ‘safe-harbour’ clause in the DMCA protects services like YouTube from liability for copyright infringement, though YouTube has many more content licenses in place, and operates a much more sophisticated take-down system. Nevertheless, Team Grooveshark frequently roll out the line “if YouTube is legal, then so are we”.

As previously reported, an increasing number of rights owners are losing patience with the takedown system element of the DMCA. Some feel the Act, or rather how it has been interpreted in the courts, puts far too little onus on the websites getting safe-harbour protection, enabling them to run slapdash takedown systems, perhaps deliberately, so that their sites can boast premium (unlicensed) content more of the time.

Others complain that the DMCA doesn’t accommodate the fact that, on any site with user-upload, as soon as unlicensed content is taken down under a DMCA order, another copy of the same content is re-uploaded, resulting in a costly and time consuming 24/7 cat and mouse chase for rights owners.

YouTube has dealt with this problem to an extent by having filters that in theory spot and block previously taken down content if someone attempts to re-upload it. But the ruling in the landmark Viacom v YouTube case – based on the video-sharing site’s early years in operation – suggested there was no obligation on user-upload sites to operate such a filter system, despite various court rulings in the file-sharing domain saying that the makers of P2P software are liable for infringement if they fail to incorporate effective content filters on their networks.

Universal has been keen to sue Grooveshark for some time, insiders saying there is no mood to reach an out of court settlement EMI style, and that the mega major would rather just see the rebellious digital music start up from Florida sued out of business. However, it’s thought the major’s lawyers fear that a straight copyright infringement lawsuit might fail because, to be fair to the Groovesharkers, the precedent set in the handful of DMCA safe-harbour cases that have been through the courts to date does sort of back up their claim that they are protected from liability, however rubbish their take-down efforts may be.

To that end Universal initially sued last year in the New York courts over tracks from its pre-1972 catalogue that appear on the Grooveshark platform without licence. It soon emerged that the reason the major was suing for such a specific section of its catalogue was down to a legal technicality – copyright works from before 1972 were protected in the US under state law, not federal law, so perhaps, the music firm’s legal beagles postulated, the federal Digital Millennium Copyright Act, and its safe-harbour clauses, would not apply. Eat that Groovesharkers.

Except, a side ruling in the recent EMI v case, where the same argument was used regarding the DMCA being limited to post-1972 works, a judge said such a theory was ridiculous, and that DMCA safe harbours applied oblivious of which bit of law was providing copyright protection.

So, Universal’s efforts to sue were looking wobbly. Except, according to CNet, as part of that legal action Grooveshark were forced to hand over a database which records user uploads, and it is seemingly by analysing that data that Universal’s legal reps have discovered what they believe is evidence key execs at the digital company uploaded music to the service’s platform themselves. Such actions constitute more straight forward copyright infringement, and the DMCA safe-harbour clause would unlikely apply.

Universal’s new lawsuit claims that the business records of Escape Media Group: “establish unequivocally that the sound recordings illegally copied by Escape’s executives and employees, include thousands of well known sound recordings owned by UMG”. The legal papers add that Universal’s has evidence that three key Groovesharkers, Sam Tarantino, Paul Geller and Ben Westermann-Clark uploaded respectively 1791, 3452 and 4600 unlicensed songs.

Universal’s lawsuit also notes a recent article on Digital Music News about the problems King Crimson guitarist Robert Fripp had in trying to get his music removed from Grooveshark. Of most import is an anonymous post in the comment section of that article purporting to come from someone working for Grooveshark, who claims staff there are routinely instructed to upload music to the streaming service’s platform, adding that management are aware of Fripp’s takedown requests, but are ignoring them because they believe he hasn’t the resources to sue.

The commenter adds: “Why am I disclosing all this? Well, I have been here a while and I don’t like the attitude that the administration has acquired against the artists. They are the enemy. They are the threat. The things that are said internally about them would make you very very angry. Interns are promised getting a foot in the music industry, only to hear these people cursing and bad mouthing the whole industry all day long”.

Of course it’s not known if that comment comes from a real Grooveshark insider, however if the evidence that senior execs have themselves been uploading unlicensed music is indisputable, then Universal arguably has a much stronger case against the streaming platform this time around. It’s thought that Universal will sue for the full statutory damages for each track infringed, which is $150,000 per track. So, if there really are thousands of Universal tracks among those staff members uploaded (which isn’t unlikely given the major’s market share), then, if the lawsuit were successful, the damages could be sky high, enough, perhaps, to achieve Objective Number 1, to sue Grooveshark out of business.

The aforementioned Geller, who generally speaks for Grooveshark these days, told CNet he was yet to see the legal action so could not yet comment.