Record labels take aim at a clever playlist 'sharing' operation

In what could be a precedent-setting case, recording companies are alleging that the Project Playlist Web site is guilty of infringement by enabling its own members to give other users access to unlicensed music files hosted by other sites.

Ostensibly, Project Playlist purports to be a site where users can share lists of their favorite music. But lists alone do not a business model make, as indicated by the fact that songs chosen by members can be made to play in sequence, in Windows Media, RealPlayer, or Flash.

That might not be a problem for a site like Pandora or Last.fm that pays royalties; but in the case of Project Playlist, it's the stuff that lawsuits are made of. In a lawsuit filed this morning in US District Court in New York, the US recording industry at large, represented by the RIAA, alleges that the site maintains a massive index of songs chosen by members to appear on their playlists -- songs hosted not by Playlist but by third parties, but unlicensed nonetheless.

"The Project Playlist Web site holds itself out as 'an information location tool' that enables its users easily to 'find, play and share' with others the 'world of music' available on the Internet, 'wherever and whenever [they] choose,"' reads this morning's suit. "In fact, as Defendant well knows, Project Playlist's exploitation of this 'world of music' amounts to nothing more than an enormous infringement of Plaintiffs' copyrighted sound recordings for Defendant's commercial gain. Project Playlist performs and reproduces Plaintiffs' valuable works (and induces and enables others to do so) without any authorization whatsoever and without paying any compensation whatsoever to Plaintiffs. And, by providing to the public the fruits of Plaintiffs' investment of money, labor, experience and expertise, Defendant's illegal enterprise inflicts tremendous damage on Plaintiffs' business."

As the Web site explains to users searching for tracks, "Our Internet search engine allows you to locate media files that are freely available on the World-Wide Web. The listings in our search engine are automatically gathered from music blogs, trade-friendly concert archives, artist Web sites, record label Web sites, and other public sources. In addition to automatic gathering, we accept submissions to our search engine by our users."

In other words, it's not actually providing the music or even broadcasting it, but simply compiling links to sources that are already making the music available.

But that's not necessarily how the site's users see it. In a forum post by one member is a rather plain-stated request: "Hey you! You know, it'd be totally radd if someone gave me some songs to download. I'd be very gracious." One response was an invitation to view a "playlist," as the member put it, of some 600 songs -- suggesting that the playlist leads directly to a download.

Though some sites consider serving audio or multimedia files "streaming," the true test of downloading is whether the listener receives the entire file whole on his system. In BetaNews tests, we were able to take the rather academic step of retrieving an MP3 file of a song triggered from a Project Playlist member's list, listened to using Windows Media Player 11, from Windows' temporary download directory. It was indeed a download.

Further, we did not have to join the service in order to just listen to the files; membership appears to only be required for creating playlists and making them available to others.

It may not, therefore, have been to the RIAA's benefit to have described the song transfer as "streaming," especially since it differentiates which law the judge must consider was broken, and whose rights may have been infringed upon. A stream, legally speaking, is a digital performance which carries certain performance royalties in accordance with copyright law; a download, on the other hand, is a full transfer of intellectual property, which carries penalties if the transfer is found to constitute theft.

As a defense against the possible argument of Project Playlist's service being "just streaming," the recording companies allege that in order for the site to do what it does, it has to copy those songs from the third parties mentioned in its index, to its own servers, in order to route them to its users.

"Project Playlist also copies to its own servers thousands (if not millions) of the music files identified on its search index, so that it can perform those works to its users more easily," the suit reads. "This process of creating server copies ensures that Project Playlist's users will be able to hear requested recordings instantaneously upon demand, regardless of any service limitations that may exist on the third-party site that originally hosted the files. By making and maintaining copies of sound recordings on its own servers (which itself involves illegal reproductions), Project Playlist thus increases its technical ability to engage in illegal performances of Plaintiffs' copyrighted sound recordings."

An RIAA spokesperson declined further comment on the matter to BetaNews late this afternoon, other than to say that the allegations in the lawsuit essentially speak for themselves.

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