Providing a streaming music service with insufficient licensing, Grooveshark has presented itself as a victim of the RIAA and an overly aggressive copyright community. It is not.
To understand why, it helps to know how Grooveshark works. Grooveshark combines the worst features of a piracy-adapted cyberlocker with the worst features of a piracy-adapted file-sharing program. It provides live, on-demand streaming of almost all popular music to anyone. But because real-time on-demand streaming is generally considered to be the long-term future of music, (the so-called “celestial jukebox”), Section 114 very clearly requires a non-compulsory licensing agreement from the owner of any sound recording thus streamed. Grooveshark has no on-demand streaming license from three of the four major labels.
Consequently, Grooveshark “obtains” a “license” to stream most of the songs actually streamed by its service by tricking ordinary teens and consumers into representing that, why sure, THEY have Section 114 licenses to authorize the worldwide, free, on-demand streaming of every song in their personal music collection–even though anyone would recognize that only a handful of informed adult consumers could honestly make such a representation.
Needless to say, a bit of misdirection is required to get ordinary consumers to “represent” that they are authorized, global, on-demand licensors of their entire music collections. Consequently, if you sign up for a Grooveshark account, it will look like you are signing up for a locker service that will let you access your personal music collection from any computer. But the catch is buried in the fine print: by signing up for this “locker” service, you “represent” that you have and grant to Grooveshark authority to stream any and all songs in your personal music collection, on demand, to anyone in the world who might want to listen to them.
The amicus brief ACT filed in Viacom v. YouTube indicated that this is not the sort of conduct that should be “harbored” by federal law. This is why: Grooveshark’s operators aren’t innovators–they are thugs. Presenting themselves as good actors, they are arguing that the DMCA should let them sit in a “safe harbor” while facilitating what is unquestionably mass infringement on vast scale by tricking kids and consumers into performing acts that Grooveshark’s cowardly operators will not perform directly because they understand the legal consequences.
A more flagrant violation of consumer protection laws is difficult to conceive. And that is why, despite its protests to the contrary, Grooveshark is anything but a victim in its dispute with the recording industry.