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DMN vs. Grooveshark Continues In the California Court of Appeal…

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It started with an anonymous comment on Digital Music News.  Nearly three years later, DMN is still fighting a legal battle against Grooveshark and its parent, Escape Media Group, to protect any examination or intrusion of our servers.  The case is now being heard by the Court of Appeal of the State of California.

The basics of the battle are this: back in 2011, a person anonymously claiming to be a Grooveshark employee alleged serious copyright infringement by the company in a comment on Digital Music News.  The comment accused Grooveshark executives of forcing employees to upload copyrighted, unlicensed works onto Grooveshark’s servers to meet prescribed quotas.  If true, these mandated quotas would constitute a blatant violation of federal copyright law, as the Digital Millennium Copyright Act (DMCA) only protects companies that have no express knowledge or participation in the uploading of infringing works.

The anonymous comment was mentioned in the legal battle between Grooveshark and the major recording labels, with Grooveshark ‘under attack’ in both state and federal jurisdiction.  As Universal Music Group led what has been termed a  ‘legal jihad,’  Grooveshark demanded that Digital Music News reveal any identifying information about the anonymous commenter, even though that information had already been deleted, overwritten and virtually impossible to locate.

Grooveshark claimed that Digital Music News might be lying, and demanded an expensive mirroring process while freezing DMN’s server clusters for several weeks as the parties argued in California Superior Court in Los Angeles.  Ultimately, District Court Judge Richard Stone sided with Escape, and Digital Music News complied with court orders by copying its virtual servers onto separate hardware pending the results of an appeal.

Nothing to date has been examined or otherwise opened to outside parties.

Last week, a panel of appeals judges heard opening arguments in the matter, with Public Citizen Litigation Group attorney Paul Alan Levy continuing to represent Digital Music News along with Charles A. Bird of McKenna Long & Aldridge LLP.  Levy argued that Digital Music News had been perfectly compliant with Grooveshark’s discovery demands, and should not be subject to prolonged and expensive discovery processes typically reserved for companies found destroying or otherwise hiding (ie, ‘spoliating’) critical data (ironically, Universal Music Group has accused Grooveshark of exactly this behavior).

Levy has declared from the beginning that if Digital Music News is forced to open its servers to an outside party, and endure endless hours of exhaustive examination that go beyond any reasonable standard, this case will open a myriad of other, similar demands.  Journalists and other parties that are not central to ongoing litigation could face massive disruption and be forced to cater to unreasonable discovery and subpoena demands, especially in the digital context.  This would not only greatly affect their ability to conduct normal business, but dangerously stretch the standards of what should constitute reasonable discovery.

“If this order is affirmed, we will see more,” Levy told the multi-judge panel.

That raised some concern among the appellate judges that Levy was seeking an overly-broad, ‘black letter’ ruling instead of a narrower decision directly related to the case.  Levy replied that while a broader ruling was favorable, he would certainly accept a narrower victory.

The Appellate forum isn’t for the weak-stomached barrister: during the deliberations, the four-panel cluster of judges frequently interrupted and undermined well-crafted legal arguments, though the tougher cross-examinations fell upon Grooveshark attorney John Rosenberg of Rosenberg & Giger, PC.  Rosenberg questioned whether anonymous voices on the internet should have the ability to ‘wreak havoc and defame individuals and businesses with impunity,’ a situation that Rosenberg felt superseded First Amendment issues or journalist protection.

That raised a question of why Grooveshark hasn’t filed a ‘John Doe’ lawsuit against the alleged defamer, though the Justices seemed more concerned with jurisdiction and legal trickery.  Associate Justice Victoria Gerrard Chaney sharply questioned whether Rosenberg was using the California court system to potentially ‘backdoor’ a subpoena that would be used in a federal case.  Rosenberg strongly argued that this was not the case, and presented circumstantial details to back those claims, though Chaney seemed somewhat unsatisfied.

Case Detail: In Matter Of Subpoena In UMG Recordings v. Digital Music News LLC, case number B242700.  Court of Appeal of the State of California, Second Appellate District.

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Comments (47)
  1. Anonymous

    So, free speech is a threat to the Piracy Industry.


    Reply
    1. FarePlay

      Artists need to be able to place their work where they want. This is why people, including the Congressional Subcommittee on Copyright Reform, support eliminating the hideous loophole called Safe Harbor. Artists need to be able to file ONE take down notice. Those sites who chose not to abide are penalized for their actions or added to a no fly zone where both advertisers and payment processors are prohibited from doing business.

      The true tragedy is that Safe Harbor has existed since 1998, never with the intention of allowing piracy to devastate content creators for fifteen years.

      Take Down > Stay Down


      Reply
      1. Anonymous

        “Artists need to be able to file ONE take down notice”

        Yes, it’s that simple.


        Reply
      2. Anonymous

        Good luck with that. There is a million and a half trivial ways to fool a computer into thinking the same file is actually a different file.


        Reply
        1. Anonymous

          “Good luck with that”

          Thanks, but luck is not involved. :)

          It’s very easy to take down criminal content and keep it down — Google proved that in 2013 when it stopped catering for pedophiles.


          Reply
        2. Anonymous

          A lot of anti-piracy proposals read like tautologies.


          Reply
          1. Anonymous

            “Internet services must remove all copyright infringing materials from their services”

            Mine is more straight forward. One sentence law. No loopholes a retarded monkey could figure out. Piracy is done for. News at 11.


            Reply
            1. GGG

              Private files, too? As in, one could upload an album to any number of sites (YouTube, Soundcloud, Dropbox, etc), keep it private and share the link with friends? And some website(s) could put all those links together in an easily searchable format?

              It’s a game of whack-a-mole, man.


              Reply
              1. Anonymous

                “Private files, too? As in, one could upload an album to any number of sites (YouTube, Soundcloud, Dropbox, etc), keep it private and share the link with friends?”

                Well, I’m the an other (or, in this case I believe, third) ‘anonymous’, but the files in your example are not private. So let’s not abuse that term. What you’re describing is just a variation of the usual MegaUpload-type of scam.

                Genuinely private files — the kind you mail to a friend — should never be controlled, imho.


                Reply
                1. GGG

                  Yes, they are private. They are private unless the law forces all these companies to look through everyone’s uploaded/stored files. In which case it’s no different than looking through files you email your friend. One could easily just change the names of files, or label a zip differently, etc.

                  Whack-a-mole.


                  Reply
              2. Anonymous

                I think he was being sarcastic.


                Reply
      3. Zac Shaw

        For once I agree with Fareplay… Take Down > Stay Down

        Take Down notices are greater!

        Holy crap are some of you people so out of touch with the reality your grandchildren already live in.


        Reply
  2. Anonymous

    Here’s a question for Casey, jw and other pro-pirates:

    Is it OK that piracy sites such as Grooveshark are censoring the internet?


    Reply
    1. jw

      I don’t know if that’s a worthwhile question, really. Grooveshark is like a cornered dog. On the one hand, you could say, “oh, well these are their true colors.” But on the other hand, a lot of legitimate companies would & even do act the same way in the courtroom under extraordinary circumstances, especially as a survival tactic.

      Personally, I think that Grooveshark’s time has come & gone. I think that they were the last evolution of truly useful piracy, & that their existence & their success forced an otherwise unwilling U.S. recorded music industry to finally push Spotify into the ring (already crippled, but nonetheless in the ring). But now they’re past their usefulness, & the concepts that they represented are all available legally. I think they should either totally legitimize (which should’ve been the goal from the start) or bow out.

      So to answer your question, no… it’s not ok, but no one ever claimed they were saints. I don’t think Grooveshark’s intentions were ever righteous, they simply happened to fill a role that needed to be filled. They were useful like al Qaeda was useful to the U.S. in the ’80s. Not that Grooveshark should really legitimately be compared to al Qaeda… that’s absurd. Simply trying to explain relativism to you.


      Reply
      1. jw

        Also, I’m not “pro-pirate.” I’m pro-consumer & pro-artist.


        Reply
        1. Anonymous

          …who spends all his spare time defending piracy and attacking artists…


          Reply
          1. jw

            I think that’s a mischaracterization.


            Reply
          2. GGG

            “I don’t have any sort of good reasoning or logic to refute what you just said, so since I can’t possibly be wrong, you must be a pro-pirate, anti-artist scum.”

            - Anonymous 1, Anonymous 2, and Fareplay always and forever. <3 you guyz!


            Reply
            1. Anonymous

              But here’s the thing, GGG:

              YOU happened to be very good at refuting any hint — subtle or otherwise — that you might be a ‘pro-pirate, anti-artists scum’.

              Simply because you’re not.

              See a representative number of Casey’s, jw’s and PiratesWinLOL’s comments and you’ll know the difference…


              Reply
              1. jw

                You’re presenting a false binary here. One doesn’t necessarily have to be for or against piracy unless you presuppose that the morality of the situation is paramount. Outside of this false binary, you can simply recognize piracy as an economic force, & then you begin to see what other forces are at work here & ways to harmonize the situation begin to reveal themselves.

                When you attempt to extract piracy from the greater economic situation, you are wrongly presuming that the economic problems will fix themselves apart from piracy & conveniently & hypocritically ignoring the moral condition of opposing economic forces.

                The recorded music industry is experiencing an economic crisis, not a moral crisis… the supposed moral crisis is merely the symptom of something much larger which you fail to see. I understand why it appeals to you… you can’t control these other economic forces… pricing models, distribution modes, etc, but you can lobby congress to pass laws on moral grounds, & that’s a “solution” that you can work towards & feel some measure of control over. But this is treating a symptom, & not the sickness. The sickness is the music industry refusing to adapt their model to changing consumer behaviors & expectations. That sickness is being treated by streaming (despite PROs & labels trying to put streaming companies out of business), & when it is solved, the symptom of piracy will no longer be a major issue.

                Just like any sickness, the longer you wait to begin treatment, or the longer you spend treating the symptoms & not the sickness itself, the harder it becomes to control the sickness, & harder it becomes to treat the sickness. That’s what we’re dealing with, a dozen years of non-treatment.


                Reply
                1. Anonymous

                  “The sickness is the music industry”

                  But that’s just pirate speak, jw…

                  Streaming is the symptom, piracy is the disease and legislation & enforcement is the cure.


                  Reply
                  1. GGG

                    So I’m guessing your next step is to shut down YouTube? Cuz, you know….that’s a much larger streaming service than Spotify….


                    Reply
                    1. Anonymous

                      “So I’m guessing your next step is to shut down YouTube?”

                      Whatever for? :)

                      YouTube is completely legitimate. I love it and use it extensively as a consumer and provider.

                      But remove mainstream piracy, and the free audio-streaming part is history. Who would give their property away if they didn’t have to compete with free?

                      Nobody.


                    2. jw

                      Youtube didn’t start out with any more legitimacy than Grooveshark, only by the time they got sued by rights owners, they were owned by a company large enough to legitimize the service. For years after they first legitimized, YouTube was a money pit, if I remember correctly.

                      If it were up to rights holders, YouTube never would’ve gotten off the ground to start with. That’s why these companies can be necessary evils.


                    3. Anonymous

                      “only by the time they got sued by rights owners, they were owned by a company large enough to legitimize the service”

                      Complete nonsense, jw. Here’s what happened in the real world:

                      YouTube continued as a piracy site after Google bought it in 2006.

                      But in March 2007, Viacom said it would sue the site for $1bn.

                      And then what happened?

                      Google’s shares dropped dramatically.

                      So four months later, in June 2007, YouTube began testing what was going to become ContentID — perhaps the best anti-piracy detection technology ever invented.

                      In other words: Had it not been for right holders, YouTube would be in Grooveshark’s position today:

                      Banned, blocked, filtered and unwanted.

                      But right holders saved YouTube by forcing Google to solve YouTube’s piracy problem.

                      Just like child care organizations probably saved Google — at least for now — by forcing the company to solve its child porn problem in 2013.


                    4. jw

                      You can’t “save” a company that doesn’t exist, & YouTube wouldn’t exist except that someone simply made it without the permission of rights holders. The point is… without piracy, there is no YouTube. And without YouTube, there is no MackLemore, there is no Justin Beiber, there is no Gagnam Style.

                      Rights holders were not going to foresee the benefits of a platform like YouTube, & while the rights holders didn’t immediately benefit from the technology, over time it became a great thing for all parties involved… the technologists, the consumer, the artist, & the label.

                      Services like Spotify are essentially the legal evolution of Grooveshark, only they were under the thumb of the rights holders from the start. This is why I say Grooveshark has outlived it’s usefulness. It’s just a shame that Spotify wasn’t allowed to develop without enormous licensing pressures. That (along with the multi-year delayed launch, thanks to the rights holders’ inability to agree on licensing terms) is why streaming is so far behind in the U.S. But it will eventually break into the mainstream. (Keep in mind YouTube has over 6 years of runway versus Spotify.)

                      Face it, you’re going to be on the wrong side of history here.


                    5. Anonymous

                      “Rights holders were not going to foresee the benefits of a platform like YouTube”

                      In 2007, Google couldn’t see the benefits of anti-piracy technology.

                      Today, ContentID is widely accepted as a key to YouTube’s success.

                      I think Google learned the lesson.


                    6. jw

                      Really? That’s your spin?

                      You don’t have arguments for your perspective, you’d rather ignore anything that disagrees your anti-piracy crusade. You’d completely rewrite history if you could. Are you getting paid for this?

                      What a joke.


                  2. jw

                    Just saying that over & over again doesn’t make it true.


                    Reply
        2. Anonymous

          We know about your fascination with Johnny Depp. That won’t be tolerated here.


          Reply
  3. wouldn't it be funny

    So, what if the whistleblower used TOR to send the message to the DMN blog?

    Would Grooveshark move on to a subpoena for the TOR server involved?


    Reply
  4. IKEEPSITREAL

    Grooveshark has been screwed from its inception. It doesn’t take an “insider” or employee to see that. Its been written all over their persona as a company.

    Ask any 13-25 year old what grooveshark is. They will think you’re talking about animal planet. lololol these old corporate folks are beyond hilarious. The only news story on google newsfeed about grooveshark is this one. Maybe they should be concerned with that. Tell me something relevant!!!!!


    Reply
    1. jw

      From a Hypebot article (Dec 2010)

      Grooveshark proudly announced on their blog yesterday that they made it onto Google’s annual Zeitgeist – a roundup of the most popular search terms on the web throughout the year. They made the list of the Top Ten searches in the United States. Strangely enough, as far as regional of interest goes, the United States is actually last on the list. That’s right. Out of ten regions, they’re far more popular is places like Costa Rica, Argentina, Chile, UK, and Australia. In Argentina, they’re ranked third, beating out Twitter and just behind Justin Beiber.

      I think this action directly contributed to Spotify launching in the U.S. six months later, which is why Grooveshark isn’t as much a part of the conversation anymore. I would imagine that the average 17-25 year old who is interested in music & tech (people who download illegally, people who stream legally) knows what Grooveshark is. But in countries where no legal streaming service is available, or where legal streaming services like Deezer just don’t have the awareness, I have a feeling that Grooveshark probably still dominates the market.


      Reply
      1. Anonymous

        “I have a feeling that Grooveshark probably still dominates the market”

        Oh, really? :)

        Grooveshark was over when Universal won the appeal in 2013.


        Reply
        1. jw

          I guess you haven’t been to grooveshark.com lately.

          I’m just making a case for their relevance, that’s all.


          Reply
          1. Anonymous

            “I guess you haven’t been to grooveshark.com lately”

            For once you’re right: Unlike you, I never use pirate sites.

            I’m not even sure I could if I would — many ISPs and countries block the site for obvious reasons…


            Reply
            1. Paul Resnikoff

              There’s an interesting point here, which is that Spotify may have had a massive impact on Grooveshark’s popularity. DMN wrote an article about this a while back, though I haven’t done more in-depth research on this.

              And it doesn’t help that Spotify (and Beats and Deezer) have collectively hundreds of millions to burn, while Grooveshark is getting broiled (the CEO even admitted to being broke).


              Reply
              1. jw

                Oh I didn’t know you still did in-depth research, Paul. Sometimes it feels like you’re just making stuff up out of thin air to please the anti-tech crowd.


                Reply
                1. Paul Resnikoff

                  Actually, when you take a step back, the battle between UMG et. al. and Grooveshark is pretty interesting. After all, Grooveshark might argue that they are merely an audio-only, music-focused version of YouTube, which of course dominates the musical landscape at this point. The problem might be that Grooveshark’s executives are just ‘doing it wrong,’ and there are serious questions on execution by the top guys there. And talk to any VC, and they’ll tell you that execution is always more important than the idea.


                  Reply
                  1. jw

                    In theory UMG vs Grooveshark isn’t much different than Viacom vs YouTube, it’s just that Grooveshark either doesn’t have the resources to go legit or they just don’t have any interest in it. They probably couldn’t survive paying rights holders like other services do, but I don’t really know where their revenue comes from. Beyond that, Google had a lot invested in YouTube, & they had a lot of diverse revenue models in the works, way beyond music… they had a lot to lose. Grooveshark has nothing to lose… if they win, they’re home free. If not, well they had a good run.

                    Re: execution, you can’t simply rely on users to build a library. For instance, the first thing I looked up was Metallica’s black album, & they have So What (from Garage Inc.) & Orion (from Master of Puppets) as tracks 13 & 14. If you use the service long enough, you’re going to run into things that are wrong, or aren’t what you’d expect them to be, & that makes users more likely to switch to a service with a better maintained library. Also, I think they probably don’t push people into signing up for an account hard enough… you’re getting a limited-feature product with an arduous to maintain queue system. I think users are more likely to move on than to commit to signing up for Grooveshark when no benefits are ever described. They should have some sort of soft messaging after 5 or 6 plays that drives users towards signup to maintain playlists & such.

                    In the long run, I think everyone, including Grooveshark’s current users, are going to be better off if Grooveshark closes it’s doors. Everyone but Grooveshark itself & it’s investors, I guess. I don’t think that the vast majority of Grooveshark users have any idea about Grooveshark’s legal issues, & I don’t think it crosses their mind whether the service is legitimate, illegitimate, or semi-illegitimate (I don’t know who they pay & who they don’t). I think that if they knew, they’d be far more sympathetic to fully legit services like Spotify or Rdio, who both offer a vastly superior product (apart from holes in their catalogs).


                    Reply
  5. hippydog

    Quote “Nearly three years later, DMN is still fighting a legal battle against Grooveshark and its parent, Escape Media Group, to protect any examination or intrusion of our servers.”

    Wow!
    I had no idea that the one comment would have turned into such a circus
    I REALLY hope other blog/ news type outlets are keeping an eye on this, its entering some pretty dangerous grounds..


    Reply
    1. Brian Zisk

      It totally sucks that DMN got dragged in to this and that the hassle has not yet gone away.


      Reply
      1. Paul Resnikoff

        Well worth the bloody fight, Brian.


        Reply
  6. Bruce N. Goren

    “. . .Journalists and other parties that are not central to ongoing legislation could face massive disruption and be forced to cater to unreasonable discovery and subpoena demands, especially in the digital context. . .”

    I’m guessing you meant to say litigation rather than legislation.


    Reply
    1. Paul Resnikoff

      Correct, thanks.


      Reply
  7. Dan

    Grooveshark has a cheek suing anyone – they are a complete set of crooks who have made money out of music whilst not having a single right to use it.


    Reply
  8. matt

    This days you go to YouTube and you have every single full album out there. If Grooveshark whants to pay for a license why record companies dont sell that too them?


    Reply

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