Barely Legally

Confessions of a Moot Court Bailiff

The Grooveshark Saga, Part 2

Last week, I wrote about the Grooveshark lawsuit. The other day, ZDNet took a look at some of the emails included in the complaint that Universal filed against Grooveshark:

“We bet the company on the fact that it is easier to ask for forgiveness than it is to ask for permission,” [Grooveshark Chairman Sina] Simantob wrote in an email to Andrew Lipsher, a partner at Greycroft, a venture capital firm. “When EMI sued, everyone thought it is the end of the company. “Once EMI, Grooveshark settle … everyone said EMI was weak anyway, so the real Goliath to beat is [Universal Music Group]. Well, it took the boys a bit before they could re-group, but I think these guys have a real chance to settle with UMG within a year, and, by that time, they’ll be up to 35 million unique, and a force to be dealt with.”

…it is unclear here how Simantob’s apparent acknowledgement that Grooveshark intended to build a business on unlicensed music will affect Universal’s case. Nowhere in the emails included in Universal Music’s exhibits does Simantob mention piracy or illegal file sharing.

Read the rest of the article – there are plenty more emails where that came from, and they’re all interesting reading.

But these exhibits are hardly the smoking gun Universal’s going to need to get around Grooveshark’s safe harbor defense I banged on about last week. While they might demonstrate some sleazy business practices, talking about having so many customers (35 million) that taking a slice of the pie would be more valuable than burning the pie isn’t illegal. I don’t see how that’s evidence of infringement.

If this is all Universal has, Grooveshark’s not in such bad shape. The safe harbor provision is probably going to protect them like it protected YouTube. General knowledge of infringing activity by users wasn’t enough there, and if general knowledge is all Grooveshark’s got, they’re in much less shaky ground than they could be.

YouTube’s got a lot more going for it than clips of the Daily Show, though. People upload videos that they’ve made, not just ones they copied from TV. Grooveshark, on the other hand, has a lot fewer non-infringing uses. Later this weekend, I’ll write a bit about the DMCA (where the safe harbor provision comes from), contributory copyright infringement, and how those work with the “substantial non-infringing uses” defense that saved Sony in the Betamax case.