Beware the Grooveshark…

Grooveshark, according to Wikipedia, is an internationally-available online music search engine, music streaming service and music recommendation web software application, allowing users to search for, stream, and upload music free of charge that can be played immediately or added to a playlist. In simpler terms, it allows anybody to upload their entire music collection to Grooveshark’s servers so that anybody in the world can listen to that music on-demand, for free. Sounds pretty awesome, right?

I’ve used Grooveshark extensively myself at the office and sometimes at home, originally as an alternative to Pandora. Unlike Pandora, you can search and listen to a specific song. You can listen to entire albums on-demand, in any order, as many times as you want, without having to even so much as register for an account. Like Pandora, it will create a radio station for you based on songs in your playlists using recommendations from registered users. Pandora operates as an Internet radio station, which means it’s subject to those rules and laws that govern Internet radio. Rules like not being able to request a specific song, and not being able to play more than x amount of tracks from a certain artist within a certain time period. Also, royalty payments. I was always curious how Grooveshark managed to get around those rules, especially after they added a specific radio function.

The more I used Grooveshark, the more I questioned how it could be legal. They’re taking music from just about any artist in existence and making it available for free streaming online. It’s like iTunes on your computer, except web-based and you don’t have to own any of the music. Now, they’ve even launched a mobile app, so you can take that same collection on the road. The site is also a haven for music pirates. Doing a search for demo, live, bootleg, unreleased, and other similar terms I found a startling amount of music that shouldn’t even be released, let alone on-demand. There are hundreds and hundreds of tracks that not only would be copyrighted by the artists, but by the entity they came from, such as Rockline performances. Recently, I’ve been searching for tracks and albums that aren’t even out yet, and have had no problem finding them. Granted, I’m only looking at the rock genre, but do a search for some albums released this week. Grooveshark is so up-to-date that you don’t even have to wait past the release date to hear new music, leaving no reason for the casual fan to ever buy music again.

The site also allows you to make a custom playlist and embed it anywhere. When we want to do an album stream, we have to get permission from the labels and sometimes jump through some hoops to get it finalized. Some labels, like Universal, don’t allow full streams of songs at all anymore, even on the band’s pages. However, if we had wanted to piss off the labels, we could’ve utilized Grooveshark to create a flash player that streamed a whole album and embedded it here on the site. Legally, it wouldn’t have been our problem. Ethically though, it would be wrong, just like linking to or embedding an illegal stream of a song on YouTube.

Grooveshark has taken a pretty brazen approach to the legalities of the site. They “know” that people are uploading music that is copyrighted and that they don’t own to the site. When I say “know”, I mean that they have to unless it’s run by a bunch of complete morons, but in legal terms they would deny knowing about it. Instead of trying to get licensing agreements ahead of time with labels, they allow users to upload anything without any screening, and use the Digital Millennium Copyright Act (DMCA) as a shield to hide behind. Legal? Yes. Ethical? No. It’s like running a nightclub where you know everybody in there is dealing and using drugs, but turning a blind eye and denying you knew any of that was going on. On their DMCA page, they urge you to contact them about licensing instead of issuing a takedown notice. Grooveshark has already been sued by EMI, but eventually got EMI to agree to license their music instead, which probably gives them even more confidence going forward.

When or if Grooveshark will face more lawsuits is anybody’s guess. The site is very popular now, but mostly amongst music and tech geeks. It doesn’t have that popularity in the “general public” like YouTube had before it faced its barrage of lawsuits. Once it does, we may see more lawsuits in the future. Using DMCA takedown notices, a label or artist may never get their music off of the site. Let’s assume there’s ten different copies of a given song on the site (there’s usually much more). The copyright holder has to list the URL of all those songs and issue the DMCA notice to Grooveshark, who then forwards it to the user who uploaded it. They get taken down. But by the time those are taken down, ten more people have uploaded that same song. To a user looking to stream those songs, they’re always available and the artist or label can never protect their works from getting streamed for free, while Grooveshark continues to make money from that song and other songs through advertising and VIP users who pay for an ad-free experience and mobile streaming. A copyright holder would have to bury themselves in the site constantly searching for the song or songs, and issue notice after notice, costing the rights-holder a lot of money and time. If it’s an extremely popular song, it might be getting uploaded again and again by the minute.

In the end, let’s say Grooveshark does face a massive lawsuit for these questionable business practices. What happens then? That’s where the title of this post comes in… the user who uploads songs is the one that is financially responsible if Grooveshark gets sued. From the Terms of Service you must agree to before uploading music:

“You hereby indemnify and hold harmless, and upon EMG’s request, defend, EMG its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim, action, or proceeding brought by a third party based on: (i) a breach of any warranty, representation, covenant or obligation of yours under this Agreement; or (ii) any allegation that any User Content provided, uploaded, syndicated, linked to or authorized by or on behalf of you hereunder or EMG’s or any User’s use thereof violates or infringes the rights of another party. You will reimburse EMG and its affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section 14, provided that EMG obtains your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. EMG shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon EMG’s request. EMG shall have the right, at its expense, to participate in the defense thereof under your direction.”

In other words, if Grooveshark gets sued, you may as well be the one getting sued, because you legally agreed to the above. It hasn’t happened yet, but if a slew of lawsuits come rolling in, do you think they’ll willingly put their business and well-being at risk to protect you? I’d be willing to bet that if it came right down to it, they’d have no problem throwing a few individual users to the wolves. If you just use the site to listen to music, you have nothing to worry about. But if you are one of those individuals providing content to the site, you better hope the site stays relatively underground, because the more attention the site gets, the more the site faces the risk of lawsuits, and the more at risk the users are who are making it popular in the first place.