Grooveshark Could Be ‘Offline by Christmas’…

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On September 29th, the United States District Court in Manhattan found Grooveshark guilty of massive copyright infringement, and specifically named CEO Sam Tarantino and CTO Josh Greenberg as bad actors.  Now, the curtains are starting to drop: just days after that decision was rendered, federal judge Thomas Griesa issued another decision that removed all doubt that the plaintiffs — a total of 9 recording labels — had triumphed in the case.

Now, a jury trial has been scheduled for March 9th in New York, ostensibly to determine damages and potentially put the site down.

Or, that shutdown could happen a lot earlier: in the original decision issued by Griesa, the parties were asked to submit proposals related to the scope of a ‘permanent injunctive relief’, which basically refers to a shutdown of the site and its operations to prevent further infringement.

It’s unclear whether those papers have been reviewed or even submitted by both parties, and we’ve received no response from either Tarantino or Grooveshark’s lead attorney, John Rosenberg of Rosenberg & Giger.  The other side is also quiet, though one major label source pointed Digital Music News a more aggressive internal timetable that puts Grooveshark offline in time for Christmas.

 “That’s been the thinking, to say offline by Christmas.  It’s vindictive, but part of it,” the source relayed.

Let’s see: in earlier comments to major media outlets like Reuters, Rosenberg held out the possibility of an appeal, and separately-filed documents indicate that Rosenberg & Giger are treading water in a separate action involving EMI.  A miraculous turnaround seems unlikely, however, thanks to a legal strategy that looked a bit misguided and mediocre from the start.  While battling a massive and resource-draining lawsuit against the well-funded major labels, Rosenberg & Giger opted to pursue another expensive and time-consuming battle against Digital Music News to unearth the identity of a loose-lipped, anonymous commenter.

That drew a chorus of negative attention and bad publicity, while subsequently attracting the participation of Public Citizen Litigation Group attorney Paul Alan Levy.  After years of subpoena litigation, Levy ultimately guided Digital Music News to a lopsided victory over Grooveshark in the California Court of Appeals, leaving DMN’s servers untouched.


Image by Dana Berlith, licensed under Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).  Written while listening to Brothers Johnson.


20 Responses

  1. The Ghost Of Jerry Garcia

    Paul, which Brothers Johnson album were you listening to “Blam!”, “Light Up The Night”, or “Right On Time” ?

    • Paul Resnikoff

      Oh that’s a great question, I really don’t know which album as it was streaming off of Sirius XM (channel Studio 54). But ‘Stomp!’ was the track, not remixed just the genuine original.

  2. Fact check

    The jury is going to send them to jail? Try again. The labels vs. Grooveshark is a civil trial, not a criminal trial. Big difference. The gov’t needs to be the Plaintiff for there to be a fine or jail time imposed. The most the labels can get is damages.

  3. David

    I think you are overestimating the effect of injunctive relief. An injunction would say, in effect, ‘don’t do it again’. And Grooveshark would just say, ‘fine, we are not uploading songs ourselves any more, and anything uploaded by our users is covered by the DMCA’. So it would be business as usual. It is the financial penalties that are more likely to put them offline.

    • rowena

      David, the Cornell website on #512 gives some hope.

      It appears that would-be listeners would have to contact each individual uploader of each individual file.
      “(b) System Caching.—
      (1) Limitation on liability.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which—
      (A) the material is made available online by a person other than the service provider;
      (B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and
      (C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A),”

      • rowena

        Moreover, given that the Court will provide an injunction:

        “(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if—
        (i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and
        (ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.”

        • Lyle David Pierce III

          And furthermore, though unavailable in the Grooveshark case, an enterprising federal prosecutor utilizing a unique alternative theory of prosecution in a prospective case may be able to attach further criminal liability to wilful copyright infringement cases where there is awareness of illegal activity:

          “In rare cases, copyright infringement may result in the imposition of criminal liability under [17 U.S.C.] section 506. Under section 506(a), the government must prove that the infringement was wilful (understood to mean that there is awareness of illegal activity) and either “for purposes of commercial advantage or private financial gain” or “by the reproduction or distribution, including by electronic means” of copies or phonorecords–during any 180-day period–with a total value of more than $1,000. The punishment is set forth in 18 U.S.C. § 2319, and involves a sliding-scale of fines and imprisonment based on the total value of the goods involved and the frequency with which the offence has been committed. The court also has the discretion to order the forfeiture and destruction of all infringing copies or phonorecords and of devices used in the infringement. Subsections 506(c), (d) and (e), respectively, set forth the crimes of fraudulent placement of a copyright notice, and false statements of material fact in a copyright registration application. As already noted, the statute of limitations for criminal proceedings under the Copyright Act is five years (compared with three years in civil infringement cases).” Robert A. Gorman, Copyright Law Second Edition (Federal Judicial Center 2006), 189.

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  5. Hammerman

    Wow I mean maybe the initial suit with the employees uploading stuff was bad.

    But 99% of the songs on there are user uploaded.

    So this means now there is established case law to pull down SoundCloud, YouTube or any site that allows the user to upload musical content.

    • FarePlay

      Groveshark got caught on a technicality, otherwise they would still be hiding behind section 512. The law and the penalties will be changing next year. Getting taken down early may save the principals from longer prison sentences.

  6. David

    I hope not! I really am hoping the labels and Grooveshark can come to a royalty agreement. I want to pay for music but will not pay more for my Netflix than a music subscription.

    Then again, Grooveshark will appeal and people have been predicting ‘the end of Grooveshark’ since, well, Grooveshark started!

    • David

      Sorry, more for a music subscription.

      $120 a year for usage of music per person is greedy and ridiculous when you look at what the television/movie media are doing ($95 a year for up to 4-5 people to use an account.)

      • Greg

        Here it is after Christmas, and I have been streaming Grooveshark most of the day. Hmmm.

        • Greg

          Here is it after 2014, and I have been streaming Grooveshark most of the day. Hmmm.