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Round Two: EFF Joins the Grooveshark Fight...

Friday, April 22, 2011
by  presnikoff

The Electronic Frontier Foundation (EFF) has been a feared and respected enemy of the RIAA for years. But unlike the RIAA, the EFF is unafraid to take on heavyweights.  On Friday morning, EFF attorney Julie Samuels launched a salvo against Google, demanding more 'transparency and inclusiveness' in its dealings with Grooveshark, while crticizing the search giant for inconsistent statements.  That creates a critically-important ally for Grooveshark, who earlier promised a fight in Congress and in the courts.  Welcome to round two, here's the statement:       

    

The vast open landscape for users, developers, and industry that Google announced with the release of Android has been growing narrower and more opaque. When the service launched, Google made much of Android’s transparency and inclusiveness, which it said would enable innovation lacking in the mobile space.  And Google has pointed fingers at Apple for its draconian, closed ways.

But who's being draconian now? Earlier this month, Google removed Grooveshark's popular app from the Android Market for violation of the Android terms of service, later informing Grooveshark that the removal was related to a "complaint from the RIAA" but nevertheless refusing to provide an actual legal or policy basis for the takedown.

In the limited marketplace for mobile apps, exclusion from one of the primary storefronts is a serious blow to a business that hopes to compete. And because Google won't say why Grooveshark's app allegedly violated its terms and conditions, Grooveshark has no opportunity to try to cure.

It's hard to not speculate about what happened. We can only assume that a complaint from the RIAA would be based in copyright. That Google would perform a copyright takedown without requiring a valid notice under the Digital Millennium Copyright Act is surprising to say the least — especially given that Google just last week filed its reply brief in the Viacom v. YouTube appeal vigorously defending its policy of responding only to valid DMCA notices where copyright complaints are concerned. (Separately, we question whether there's a theory of copyright law under which Google would be liable in the first place, given that Google merely stores the code for another service provider's app — code that we seriously doubt is itself infringing or otherwise illegal and which isn't even executable on the Android Market platform.)

And if the RIAA's complaint was not one under the DMCA, we – and others – are left to wonder: Did Google take down the Grooveshark app because it will compete with Google's rumored soon-to-be-released cloud music service?  Did Google's takedown intentionally coincide with its appearance before the House Judiciary Subcommittee on IP in an effort to make itself more sympathetic to Congress? Is Google simply letting itself be controlled by the whims of the RIAA and the larger content industry as a whole?

We'd like to believe that none of these is the case, yet Google's failure to provide a concrete explanation leaves us guessing. And Google's larger failure to implement a policy that provides clear-cut rules and procedures for alerting app developers of their alleged violations of Google policy and giving them opportunities to cure runs counter to an environment of inclusiveness that Google has long touted. Despite recent events, we continue to hope that Google will stand up for these principles and maintain an Android Market that is open and transparent.

Julie Samuels, Staff Attorney, Electronic Frontier Foundation.  Reprinted with permission from eff.org.

 

 



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