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Will Radio Learn From TV? Maybe Not...

Will Radio Learn From TV? Maybe Not...

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision. This is a media conglomerate that owns about 25 radio stations targeting the Hispanic market. DAR.fm received a cease and desist letter claiming that allowing people to record from Univision stations is a copyright infringement. In addition they claim that because DAR.fm allows users to download recordings to iPhones, Android devices, iPads, Blackberry, PCs, etc that it is an "open door" to infringement.

It should be noted that Cease & Desist letters are common in the online media world. Every online company dealing with music or radio that achieves any level of notoriety has received C&D letters including companies like Pandora, Spotify, SoundCloud, Tunein, and Google. Receiving a C&D letter confirms DAR.fm has a relevant service otherwise people wouldn't bother to contact us. Most companies quietly try to deal with these demand letters. My approach is different. I think it's important for everyone in an industry to know what is going on so all can understand where we are at. I'm not the only person with this view. There's a website called Chilling Effects which is an online database of such demand letters.

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

Univision also claims that because DAR.fm allows users to download recordings to PCs, iPhones, iPads and Android so they can listen wherever they like that it is "opening the door for users to engage in copyright infringement". In the late 90s record labels took the same position trying to convince courts to outlaw MP3 players as piracy devices. The downloading = piracy argument was illogical and flimsy then and more so now. All DAR.fm recordings are stored in password protected storage. It's true users can setup automatic downloading which makes listening offline on any device easy, but that's not "opening the door" for copyright infringement anymore than when Amazon or iTunes allows people to download songs or Instapaper or ReaditLater let people download articles. People are not always connected to the net and (until they can connect affordably) downloading will be essential.

Sadly Univision's reaction is the typical copyright maximalist approach where every new technology is greeted with legal threats. Outside law firms are happy to charge $500/hour to a business and play along. My hope is that radio companies look at the 10 year DVR experiment which is TV and realize that DVR-like technology can give consumers more control as other media forms helping radio stay competitive in an ever competitive world. Perhaps it will take a legal battle. I'm prepared to fight it. Are radio companies that blind to the realities of the digital world they must compete in as well as the legal precedence? Maybe, but I hope not.

-- MR





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