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Summary:

Univision, the Spanish-language media giant, has opened a new front in the long-running battle over where and how people can make copies of…

Radio

Univision, the Spanish-language media giant, has opened a new front in the long-running battle over where and how people can make copies of digital media. This time the target is serial entrepreneur Michael Robertson and his DAR.fm service that lets users capture radio programs for later listening.

Univision says DAR.fm amounts to copyright infringement and is threatening to sue. Robertson, on the other hand, claims it is not only legal but is also reviving the radio industry by offering a service just like TiVo (NSDQ: TIVO), the popular set-top box that lets people record TV shows. The name DAR stands for Digital Audio Recorder (the radio-sounding “.fm” was bought in the Federated States of Micronesia).

The service works by providing a website that lets users browse thousands of shows — from “Rush Limbaugh” to “Fresh Air” — that stream their broadcasts on the Internet. If a user logs in to the site, he or she can then hit a “record” button on the website to tee up a show for later listening. “TiVo for radio” sounds like a good idea. So why does Robertson risk being sued?

The legal issue here dates back to the famous Betamax case from 1984 where the Supreme Court held that it was not copyright infringement to record a TV show for personal use in one’s own home. It is that same principle that makes TiVo legal. The company provides a hard drive rather than a digital cassette recorder but the idea is the same — people can make personal copies.

The reason Robertson is running into trouble is because DAR.fm pushed the envelope by offering users’ an annual $39.95 subscription that allows them to copy the radio shows to other devices like phones, tablets or MP3 players. While this distinction may feel arbitrary (who cares if I listen to my radio show on my laptop or my phone?), the law here is not about a consumer’s Betamax right to copy but instead is about a rule that forbids companies from copying media for commercial purposes. And DAR.fm appears to be engaged in precisely this sort of copying in order to make the radio shows available on other devices. Recall also that Sirius-XM at one point was quickly smacked down for offering devices that permitted people to capture radio songs as MP3s.

Robertson is a seasoned provacateur who has been down this road before. His company MP3.com fought and lost a very similar issue when, in 2000, a New York court ruled that MP3.com violated copyright law when it copied songs to its own servers. This time around, Robertson is pushing back against Univision by touting a 2008 decision from the influential Second Circuit which sided with a TiVo-like company that offered a service allowing viewers to store their shows at a remote location instead of in a set-top box in their home.

The facts in the 2008 decision are not really on all-fours with what is going on at DAR.fm but the case does help Robertson by expanding the ways companies can store media. He likewise received a boost when a court earlier this year ruled that the cyber-locker service provided by MP3.com — which lets users store their own music in the cloud — was not liable if a customer stored pirated music.

Robertson’s current fight with Univision appears in many ways a tactic to get out front on the media angle of the story and to raise the profile of his radio-recording service. But it is also significant because it shows how copyright laws that already feel incoherent are about to get much messier as consumers embrace cloud-based services like DAR.fm

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  1. Jeff Lawrence Friday, October 7, 2011

    One of my company’s products, PlayLater, offers a similar time-shifting service for online (video) content, and we encounter legality questions from media on a daily basis. We echo Michael’s position that personal recording of legally accessible content for the purpose of time-shifting constitutes consumer fair-use under copyright law. Further, the mere act of moving one’s personal recording from one device to another in no way constitutes “distribution to others”. Consumers should be (and by law, are) able to watch broadcast content when and where they want, and through the device of their choice.

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