I made an amazing discovery last week. My afternoon needed a soundtrack and I went looking for a Web site that would allow me to stream music in the background while I edited away here at MainStreet. A co-worker turned me on to Dizzler.com, which it’s fair to say, blew my mind almost immediately (though my enthusiasm for the site has since waned).
It’s a pretty simple interface. There’s a search bar at the top, you type in the name of the artist you want to hear, and you’re provided with a list of songs by that artist. Click on the song and listen to your heart’s content. My soundtrack for the afternoon was provided by Air Supply. Don’t laugh. I decided that I needed to rediscover them, having not really listened to the Australian duo since 1984… and it turns out they are awesome.
As I was grooving on “Even The Nights Are Better” for the twelfth time it occurred to me to consider the legal ramifications of my listening session. Is this stealing? Isn’t Dizzler just like Napster? Aren’t they going to get sued out of existence?
Online Free Music is Great, But is it Stealing?
So I e-mailed a guy I know from high school who knows about this stuff. Phil Kaplan, a.k.a. Pud, is the creator of the infamous Web site f**kedcompany.com, the founder of AdBrite and is now an Entrepreneur In Residence at Charles River Ventures, a venture capital firm.
“There are a ton of these sites,” Phil says. “They don't actually host the music. Rather, they scour the Internet for random MP3s that people leave around on web servers.”
So, they’re not peer-to-peer sites in the way that Napster was, or Limewire is. File sharing sites allow people to connect their computers and share files – which would literally allow me to download as much Air Supply as I could find. I’d be in possession of the files, many of which, like the Air Supply music, are copyrighted and legally people don’t have the right to distribute them (LimeWire implores users not to share copyrighted stuff).
Dizzler, on the other hand, searches for music that is sitting on public servers and indexes it. So basically the site is a web browser that produces a list of as much music as it can find on the Web. When someone does a search for Air Supply, Dizzler searches the web and finds Air Supply music on a variety of computers, and when you click play, the Dizzler player creates a connection between the user’s computer and the computer that has the music. That connection is encrypted so the user never knows where the music is coming from.
The music is streamed to the user’s computer, not downloaded. (Dizzler, by the way, doesn’t always function smoothly. Sometimes you’ll click a song and a different tune will play and organizing a playlist is not really intuitive, but hey, you get what you pay for, right?)
Legally, Phil says, it’s a “grey area. [Sites like Dizzler] get shut down all the time but keep springing up.”
Free Music Site SeeqPod, RIP
One example of a site that was shut down is SeeqPod, which filed for Chapter 11 in March of this year. Like Dizzler, SeeqPod crawled the Internet looking for music files which its users were able to play on SeeqPod.com. Also, like Dizzler, SeeqPod didn’t host any of the music on its own servers. Nevertheless, SeeqPod was slapped with multi-billion dollar lawsuits by a bunch of different record labels.
Sites like Dizzler really function more like a radio station which users can customize. Real radio stations, however, pay royalties to artists and labels every time they play one of their songs.
One Lawyer's Opinion
I asked a lawyer friend who deals with this kind of stuff what he thought (he didn’t want me to use his name). Here’s what he told me:
“Every Internet distributor is different in their approach. Anywhere.fm, a similar service, has agreements with the labels. Dizzler takes a different position - that their search functionality is supported by a court decision. So far so good, apparently. You can bet that the labels are watching, and pick their battles. That said, Mike, you should just bring your iPod to work and quit wasting bandwidth!”
Here’s Dizzler’s About page, citing the court case in question:
“The Ninth Circuit Court of the US has ruled that the framing of other Web sites' images (content) does not constitute copyright infringement. The Court applied what it called the 'server test.' Copyright infringement requires copying, and when the search provider frames another Web site's content, it does not create a copy of that content on its server. Rather, the search site contains HTML code that refers the user's browser to the other Web site's page, from which the browser retrieves whatever content is found there, including copyright-infringing files. The Ninth Circuit also ruled that copying and reducing a copyrighted image (creating a thumbnail), then displaying it alongside numerous other images as a search result, amounted to a ‘transformative use.’”
But plenty of legal types disagree with Dizzler’s justification.
In their complaint against SeeqPod, Warner Brothers, Electra, Rhino and Atlantic - all owned by Warner Music Group, a subsidiary of Time-Warner (Stock Quote: TWX) - allege that, “SeeqPod and its ‘angel’ investors directly profit from the mass infringement occurring through its site by attracting more and more users, increasing advertising revenue and the overall value of the site.... In short, SeeqPod is building a business on the expropriated copyrighted works of Plaintiffs and other content owners.”
But are sites like SeeqPod and Dizzler the only ones responsible… for the royalties in particular?
Dizzler has definitely made the music accessible and even furnishes users with customizable, embeddable players which they can use to broadcast music on their own Web sites. But users are the ones that actually create the customized radio stations, either by creating set playlists or just playing tunes as they discover them. They’re like the program directors, albeit with very small audiences, but their “stations” don’t pay any royalties to the artists.
Making it Right With Air Supply
So, if I’m Air Supply or their label, who do I go after? Do I sue Dizzler, which may have deep pockets and is responsible for facilitation the alleged copyright infringement? Or do I go after a few users, make an example of them and hope that people stop using services like Dizzler.
It’s kind of worrisome, especially when you consider that 25-year-old grad student Joel Tenenbaum was recently found guilty of illegally downloading 30 copyrighted songs and might have to pay four music labels $675,000 (it could have been as high as $4.5 million). .
Nothing is free in this world. Someone always pays. But I also think it’s fair to say that sites like Dizzler provide real marketing value to artists whose music might otherwise have gone unexplored. For example, I was sufficiently entertained by my Air Supply listening session that I was motivated to buy the Air Supply box set (stop laughing – they’re awesome). I would never have spent the $32.99 on that box set without having first listened to the music on Dizzler. So maybe Dizzler is good for Air Supply and the labels, and even moreso for lesser known artists.
Since Dizzler doesn’t facilitate downloading the songs, and the MP3s are not generally CD quality, people who enjoy the music and want to listen to full fidelity versions whenever and wherever they want need to buy the music … which is what I did. So I figure me, Air Supply and the lables are square.
“Even the nights are better,
Now that we're here together,
Even the nights are better,
Since I found you.”
They move me.
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