Serial disrupter Michael Robertson opens a new front with DAR.fm

By Emmanuel Legrand

Michael Robertson

Michael Robertson is back! The San Diego-based entrepreneur behind mp3.com and mp3Tunes.com is launching these days his new project, DAR.fm, a “digital audio recorder”. His new system records radio streams, identifies individual songs in a broadcast and allows users to download them to mobile phones or on their music libraries. The service is free for the moment and will eventually, according to Robertson, be advertising-driven.

It's a bit like when in the old days we were recording our favourite radio shows, except that this time, it is digital, and it gives "ownership" of the chosen music files. It is quite obvious that this new service will raise some concern from the radio and the music industries. At face value, it seems that Robertson is going to build a community using content that he has not created nor that he has the rights to, and that he will then monetise. 

The new service launched using a provision in the DMCA legislation. In a Business Week report, Robertson says he is on solid legal ground… Eager to know more about it, I turned to Paul Sanders, a British entrepreneur who co-founded companies/services such as Media Service Provider, Consolidated Independent, and state51 and who is usually quite knowledgeable about these things and who has a capacity to see both sides of the fence – the rights owners’ and the tech firms’.

According to Sanders, Robertson's service “relies on the statutory webcasting right in the [US digital legislation] DMCA (which is of course compensated), along with the principle of exemption for time-shifting and device-shifting, which is the line that is being tested in EMI versus Robertson in Mp3Tunes.com. If he is right legally you can take the view that he is wrong ethically, or that his rightness will have deleterious consequences, and you can try to get the law changed.”

Rather than confrontation, Sanders suggests a rather more open approach to such services as they offer the possibility to engage with music consumers. “It is entirely reasonable, in my view,” said Sanders, “to look at Robertson's service and say a) it provides a great way to move more music consumption into paid streaming, on a ratcheting rate, or b) it looks like an interesting model of consumption in its own right, so the consumer might be telling us something that we could understand and adapt our wholesale behaviour to encourage.”

To which he added: “Of course reasonableness and balance plays less well with copyright owners than extremism.”

“Extremist” is certainly a word that a lot of rights owners would apply to Robertson, who is described in the Business Week piece as a “discombobulator” (a guy who has a magical way of solving complex problems, according to the Urban Dictionary).

And they would argue that there is nothing in Robertson’s modus operandi about trying to accept that there are rights owners and that they have rights (Robertson has repeatedly said that the licensing process with major companies was “painful”) – he just goes for the shortcut. And takes the risk of facing litigation: His previous venture, music locker service mp3Tunes.com is in the midst of a court case started in 2007 by EMI. (At MidemNet in 2009, former EMI Group CEO Eric Nicoli told Robertson: “If people use technology to knowingly break the law, they shouldn’t be shocked if someone brings them up on it.”)

For many in the music industry (EMI maybe?), what he comes probably closer to is what journalist Robert Levine calls “digital parasites” in his forthcoming book ‘How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back' (Random House) – someone who builds a business on somebody else’s property without paying a dime for rent, the usage of utilities and the basic products needed for their trade. And a serial offender at that he is too, for he’s done the trick a few times already!

  

Sanders takes a different view. “I don't see DAR.fm as much of a threat to what it needs to feed on,” he said. “And I do know Michael. He is an extreme example of a problem solver, and he does really care about music. I would not want to second guess his motivation, beyond success at what he does, but it is entirely unreasonable to expect that he should be required to prop up existing music companies, and entirely reasonable that he should be expected to care about the music industry. Because he does need a healthy system releasing new music and distributing it, making it popular, and re-discovering the old catalogues constantly. I don't myself see Michael as someone who is feeding on the decline of the music industry, certainly not to the extent that many rights owners are.”

That is certainly open for discussion… Let’s see how DAR.fm will develop, and what will be the response of rights owners. It would not be too surprising if we’d get into another round of litigation. In the end, it’s always the lawyers that make money.

PS: The debate on free content took an interesting twist last week. The dear Arianna Huffington, who ran a very successful web site, using other people’s words for free, sold it to AOL for a few hundred millions dollars. And now she’s surprised that people could knock on her door and ask for a piece of that money. Slaves revolting? Tssss, let them eat cake!