Alright, let’s talk some copyright! Remember Napster? Or maybe you were into Limewire? How about Kazaa? Grokster? I was an undergrad in the early two-thousands (aughts?) when the Internet was teeming with peer-to-peer (P2P) file sharing sites. It was a lawless frontier where copyright outlaws roamed free and content was ripe for the infringin’.

It didn’t take long for the music industry to take notice and hit the P2P services (and the occasional downloader) with a salvo of copyright infringement lawsuits. One by one, these file sharing sites had to answer for enabling massive amounts of infringement and, for the most part, were shut down entirely. But some digital music sharing sites adapted to the law and evolved into services like Grooveshark that, while claiming to be compliant with copyright law, appeared to offer copyrighted content free of charge like their Napster-like precursors.

In order to understand how websites like Grooveshark were able to exist for so long after the crackdown on Napster, a quick lesson in copyright law is necessary. In 1998, Congress passed the Digital Millennium Copyright Act in a response to the rise of copyright infringement on the Internet. While the DMCA heightened penalties for online infringement, it also limited the liability of providers of online services for the infringing activities of their users. This provision (found in Section 512 of the DMCA) that shields online service providers (OSPs) from liability is referred to as the “safe harbor” provision, and has become the most prevalent and successful defense relied upon by websites and services accused of contributing to copyright infringement.

In order to avail themselves of the protections of the safe harbor provision, § 512c requires OSPs must:

1) not receive a financial benefit directly attributable to the infringing activity,
2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and
3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.

In the seminal case MGM v. Grokster (another P2P music sharing website) the Supreme Court added the requirement that, in order to shield themselves from liability, OSPs must not induce infringing activity by encouraging their users to upload or download copyrighted material. So websites, such as Youtube, now respond to “take-down notices” by removing infringing materials uploaded by their users in order to escape the consequences of contributory copyright infringement.

Targeted in many major record label lawsuits, Grooveshark claimed that it was simply a platform that allowed users to upload their legally purchased music and then stream songs in a manner similar to services like Spotify. But the United States District Court for the Southern District of New York didn’t address this neutral platform defense, instead focusing on some rather incriminating evidence regarding actions of Grooveshark’s founding executive and employees. Company wide emails and forum posts from Grooveshark’s co-founder, Joshua Greenberg, surfaced in which he not only encouraged, but ordered employees to upload infringing material to bolster the websites library. In addition to the fact that these uploads were not subject to the DMCA safe harbor provision, the court found that the company repeatedly ignored take-down notices.

Found guilty of infringing thousands of copyrighted works, and also appearing to have destroyed evidence in the case, Grooveshark looks to be doomed. In his opinion, Judge Thomas P. Griesa wrote,

“Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights,”

The Court’s opinion represents a pretty major win for record labels and content owners, seemingly putting and end to the Groovesharknado (I think I need to trademark that) of litigation that been tearing through courts for 6 years.

Check out the United States Court for the Southern District of New York’s opinion here: []


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