Seeqpod's turn to be sued
Warner Music Group's lawsuit against Seeqpod, like Viacom's $1 billion claim against YouTube, raises intriguing questions about how the Digital Millennium Copyright Act applies to sites that rely on copyrighted media furnished by users. I'm going to skip the legal discussion, though, to ponder a related policy question: Should Internet-based music businesses be able to avoid paying copyright holders based on purely technological differences in the delivery of their product?
As much as Seeqpod likens itself to Google for legal reasons, the more apt description is that it's a cross between a free online jukebox (a la the remodeled Last.fm, iMeem or free.napster.com) and a webcaster. Plug an artist or track name into the search box, and Seeqpod returns a list of matching links. Sometimes it can't find any -- it doesn't have a central library of music, but rather scours the web for songs posted by others -- but most of the time it will at least come close. Clicking on a link causes the song to play on the Seeqpod site. Alternatively, users can tap into the links generated automatically by the site's "PodCrawler," a random collection of tracks, or they can call up a list of tracks similar to ones that they like. There are no advertisements on the site, at least not yet, but that's not for lack of opportunity to sell them.
In short, although Seeqpod doesn't aggregate tracks on its site a la iMeem et al., from the user's perspective it's not much different functionally. Put simply, it's an on-demand music service curated by users, not a program director or label-relations staff. (The Seeqpod blog talks about its ability to return and play a variety of search results -- blogs, images, Wikipedia posts -- yet the site is set up to deliver musical entertainment. The PodCrawler presents links to songs and music videos, after all, not random Wikipedia entries.) So why, when all its competitors in this field are forced to pay royalties, shouldn't Seeqpod?
You might argue (and please do) that copyrights don't exist to create level competitive playing fields. The purpose, as the Constitution points out, is to encourage the creation and dissemination of art. Still, we tend to think of encouragement in financial terms. That means the creator of a work gets a piece of the economic activity that flows from it, both direct (e.g., the sale of a downloadable single) and indirect (e.g., the music in a nightclub that helps attract customers). Seeqpod argues that it isn't really performing or distributing copyrighted works, it's merely helping people find them. Yet when Seeqpod users play songs, they do so on Seeqpod's site, creating an audience which the company can leverage to sell advertisements. Without music, what is Seeqpod's business model?
You might also argue that Seeqpod represents the next generation of over-the-air radio, which has never paid royalties to the record labels (although stations do pay royalties to songwriters, and Seeqpod doesn't). Radio stations historically were exempted from paying royalties because they provided a different sort of compensation, namely, promoting the sale of singles and albums. But that argument is less persuasive today, given the deepening slump in revenue from music sales. That's why labels and artists are pushing Congress to end the royalty exemption for over-the-air radio. What compensation does Seeqpod offer? The exposure artists receive is valuable, particularly through Seeqpod's Discover function, which lets people find songs similar to the ones they like. But Seeqpod undermines that value by providing links to free (and, most likely, unauthorized) copies of each song, rather than offering an option that pays copyright owners.
Seeqpod's music service is compelling, and it's technology is pretty nifty. Anyone who remembers the MP3 search engines from a few years back will be impressed by Seeqpod's ability to find links that actually work. Having users provide the tracks may leave gaps in the library, but it also brings in alternate versions of songs, rarities and other goodies overlooked by services that rely on the labels to supply their music. And it's conceivable that Seeqpod has a winning legal argument, based on the DMCA's safe harbors. Still, it's hard to look at Seeqpod and not see another entry into the online music business. If Yahoo has to pay royalties for its music services, why not Seeqpod? What's the rationale, other than consumers' love of all things free?
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I don't really see how your argument is an argument. Why should everbody in the online music business have to pay royalties? AMG doesn't pay royalties for metadata. The New York Times doesn't pay royalties for music reviews.
The underlying sense of the DMCA safe harbor is that a linker has no control at all over the link target. The target may be authorized or unauthorized -- this is an issue of the host's legal standing relative to the content, not of whether the content is a hit song; record labels host free copies of their own songs all the time. The target may have become an error page. It may have been authorized at the time the link was created and have become unauthorized when a contract expired. Holding linkers responsible for what's at the other end requires them to do the impossible.
I understand that Seeqpod is being blatant and obnoxious, and I don't like it either, but the lawsuit doesn't help anybody.
Posted by: L | January 27, 2008 at 08:53 PM
There's a huge difference between Seeqpod and AMG or the NYT, just as there's a big difference between Seeqpod and Google. Only Seeqpod is building a business around the *performance* of music. You can argue that it's complying with the DMCA; as I said, that's a legal question. Mine is a policy question. Seeqpod is in the business of entertaining people with musical performances, competing wtih webcasters, subscription services and all of that ilk. That's no accident, not something driven by users' unanticipated demands on the site. The company designed its site to play music for people on demand. So why should it not be compensating the suppliers of that music, just as its competitors do? Should companies be able to use clever technological constructs to exempt themselves from the biggest cost of doing business?
Posted by: Jon Healey | January 28, 2008 at 11:42 AM
Should companies be able to use clever technological constructs to exempt themselves from the biggest cost of doing business?
The answer is yes. "Clever technological constructs" are frequently called "innovation." And innovation (often disruptive innovation) is the life blood of our economy AND the copyright industries (witness the new markets made possible for Hollywood thanks to the VCR).
Historically, it has been precisely by finding gaps, contradictions, and ambiguities in the Copyright Act that innovation has been allowed to flourish in what is otherwise a law distorted by lobbyists to buttress and rationalize existing business models. Consider the player piano, broadcast radio, jukeboxes, the VCR, MP3 players, search engines, and ISPs. All of those are businesses that have relied on their "technological constructs" to get rules that are different from those that were in place before they came along to disrupt incumbent businesses.
For example, consider YouTube. Thanks to the DMCA safe harbors and YouTube's "technological constructs," it can publish video without fear of copyright infringement (so long as it abides by the other requirements of the statute). This is a completely different set of rules than those that apply to NBC when it puts material on TV. Unfair? Maybe. Necessary to give room for innovation? You bet.
The goal of copyright law has never been to protect existing business models from "unfair" competitors. The goal is to provide incentives for tomorrow's creators, who in turn depend on today's innovators. By aggregating the distributed power of the Internet, SeeqPod is part of that tradition. (And Jon, before you tell me that they are aggregating the illegal infringements of others, I want to point out that lots of previous historical innovations began by building on initially illegal activity, later legislated or negotiated into legality.)
Posted by: Fred von Lohmann | January 31, 2008 at 09:35 AM
Re: lots of previous historical innovations began by building on initially illegal activity, later legislated or negotiated into legality
OK, *now* can I point out that Seeqpod is aggregating the illegal infringements of others? I'd feel a lot more comfortable with your arguments, Fred, if a) Seeqpod were using its technology to deliver something fundamentally different from other on-demand music services online (Consider the site's list of top 100 searches in 2007 -- http://www.seeqpod.com/blog/?p=15. Aside from Finnish metal band Nightwish and entries for "vs." and "remix," it's all hit-making major-label acts.), and b) Seeqpod followed YouTube's lead in striking revenue-splitting deals with the labels whose music provides the foundation for its business.
Not to suggest that you're not persuasive, but here's a good argument you *didn't* make. Perhaps the fault here lies mainly with the labels (and bands) for not licensing consumers to post streamable versions of a limited number of the tracks they buy (or record at shows). That would take care of the underlying infringement. It might also stimulate a bunch of companies to come out with services like Seeqpod's, promoting innovation and encouraging the kind of music consumption that generates revenue for copyright holders.
Now go ahead and tell me that the real answer is blanket licenses. :-)
Posted by: Jon Healey | January 31, 2008 at 03:07 PM
Yup, blanket licenses. :-)
But seriously, most observers expect this to settle along the same lines as iMeem. If that's right, then the DMCA safe harbor works exactly as it should -- it encourages innovators to enter the field and build compelling, disruptive businesses, while the copyright system leaves enough risk to encourage the parties to sit down and negotiate a sensible solution (especially since SeeqPod doubtless wants to do some new things that won't fit into the safe harbors).
In some ways, this is progress. If this had happened in 1999 when Napster burst on the scene, a lot of misery could have been saved. So here's hoping the music industry and SeeqPod find common ground (and thereby de facto legalize all those "illegal infringements of others").
Posted by: Fred von Lohmann | January 31, 2008 at 05:16 PM
Let's hope so, so the industry can get into fields of businesses they never dreamed of, thus getting their revenues back to where they were before and exceeding such!
From a former RCA employee now creator/owner of a unique music startup!
Posted by: Ryan Spahn | May 24, 2008 at 10:53 AM
I don't think that, from a technical standpoint, that SeeqPod is doing anything illegal. Their service doesn't HOST any illegal content, nor do they assert control or ownership over any content that they find. It's equivalent to using a few parameters to search Google for mp3s. Google itself did nothing wrong, whoever posted the content, and potentially whoever downloads it did. Yes, you can listen to (most likely illegal copies of) music through SeeqPod. However, it still isn't hosted by them. It's streamed. I still don't see that SeeqPod has done anything illegal.
Posted by: Matt | September 04, 2008 at 01:46 PM
I think Seeqpod is a fabulous tool for the record label lawyer sharks and RIAA fanatics. The address and host of each and every track located by Seeqpod is clearly listed. As far as the witch hunters of the RIAA are concerned, Seeqpod should be the number one tool for cracking down on abusers of copyright. If the site owner has permission to host songs on their server then great! but if not then should we not consider the person who posts the song is the real criminal. Seeqpod seems to be taking the position of the American court system - innocent until proven guilty, if the song is on the internet, it must legitimately be there. I've used the seeqpod service, and I've purchased 4 new albums based solely on exposure to music I heard through Seeqpod. The HollaWalla widget application from Seeqpod is a brilliant idea - a virtual jukebox combined with a guest book. These lawsuits against Seeqpod could be likened to EMI and WMG suing Wurlitzer for making a machine that plays music, 3 songs for a quarter.
Posted by: sean | April 02, 2009 at 12:44 PM
MOST OF THE CONTENT OF SEEQPOD WAS P2P FILE SHARING. THE WHOLE CONCEPT OF THE INTERNET IS BASED ON FILE SHARING. WARNER CLAIMS THEY ARE NOT BEING PAID ROYALTIES EVEN THOUGH I AND OTHERS PAY THEM TO PROVIDE THE VERY SERVICE WE USED TO FIND SEEQPOD AS MY INTERNET SERVICE IS PURCHASED FROM THE OLIGARCH TIME WARNER. WHOM...BY THE WAY ALSO GETS PAYED EVRYTIME I WATCH T.V. LISTEN TO THE RADIO OR READ MY NEWSPAPER. BIG BUSINESS GREED IS WHAT HAS PUT THIS GREAT NATION INTO THE FINANCIAL STRAIGHTS THAT IT IS IN NOW. I GUESS THE HUNDREDS OF MILLIONS I AND OTHER TAXPAYERS GOT HIT WITH TO BAIL OUT THE MONEY CHANGERS THAT REINVEST AND FURTHER BLOAT WARNERS PORTFOLIO DOES'NT COUNT EITHER. 'NUFF SAID!
Posted by: SHAWN | April 29, 2009 at 09:19 AM
How is this any different than the fact that Google allows the same music searching with the "intitle:index.of" property? Anyone can search music and download it this way. Seeqpod doesnt even allow you to download music.
Posted by: Jay | June 19, 2009 at 01:50 PM