Net Radio: Still A Pandora's Box?
By Sara Robinson, Interactive Week
April 2, 2001 8:03 AM ET
Internet broadcaster Radio Free Virgin plans to announce today that its users can now click on a record button to save copies of songs onto their computers.
Radio Free Virgin is not the first company to offer software for recording streamed audio onto a hard drive. But because of a section of a 1998 copyright law applying to Net radio broadcasters, the company - part of the group that owns Virgin Megastores - may be in a tenuous legal position.
Now that Napster has been reined in by the courts, Webcasters, as Internet broadcasters are known, are adding features to swell their audience with former Napster users looking for less restricted services. Other companies are testing the legality of devices and services that could facilitate copyright infringement, but on a much smaller scale than Napster. Radio Free Virgin seems to be at the confluence of both trends.
Radio Free Virgin's new record button enables users to record songs from any of the more than 40 channels it offers. The button will be automatically added today to the Radio Free Virgin players of the company's 1.7 million users.
While recording from radio with dedicated devices, such as cassette decks, was clearly legalized by the Audio Home Recording Act of 1992, recording Webcasts via computer software falls into a legal gray zone.
When the Webcaster issues the software, the zone is grayer still. The Digital Millennium Copyright Act (DMCA), enacted in 1998, says Webcasters that meet certain conditions are entitled to a license from the record companies if they pay royalties. One condition is that the Webcasters take "no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient."
Zack Zalon, Radio Free Virgin's general manager, said his company is relying on the "statutory license." But he said his company's lawyers believe the new feature, which lets users "time-shift" radio broadcasts, qualifies as fair use. To prevent swapping, recorded songs will be encrypted and playable only using the Radio Free Virgin client software on the computer that recorded them.
Zalon said he has not yet informed the record companies of his company's plans. "I'm quite sure we'll hear from them," Zalon said. "But once we explain to them how it works, I think they'll be OK with it."
Fred Von Lohmann, an intellectual property lawyer at law firm Morrison and Foerster, said he didn't know how Radio Free Virgin could get around the DMCA restrictions. Still, he noted, Radio Free Virgin, as an affiliate of a large CD retailer, is not an ideal target for a lawsuit. "Record companies tend to choose the most underfunded and threatening ones to sue first," he said. The Recording Industry Association of America did not return calls seeking comment for this story.
"It sounds like what Radio Free Virgin is doing is not as threatening as Bitbop [Tuner]," Von Lohmann said. Bitbop, new software in beta version from Audio Mill, enables users to scan thousands of Internet radio stations for songs and record them.
Other products on the market include High Criteria's Total Recorder and Voquette's Media Manager; both record streaming audio.
Meanwhile, the record industry filed court papers claiming Napster's free music offerings haven't changed much. The industry said Napster is deliberately ineffectively blocking the sharing of copyrighted songs to keep its users from going elsewhere.
