Posted By Paul Kafasis on January 23rd, 2008

Earlier today, two things happened. First, I wrote about our support of the EFF, noting that none of our products were created to facilitate theft. We’ll get back to that in a minute, but it was a timely post. Second, CBS-owned music site Last.fm opened up streaming from their site. Where previously they’d provided 30-second previews of songs (a la iTunes), they’re now providing on-demand access to full-length tracks and albums.

This is a very cool thing, as it makes music more accessible. Various individual artists in the past have streamed their new album or a single right from their site, with the idea that you’d take a listen or two and hopefully buy the album. Last.fm is looking to shake that model up and monetize the streaming itself via ads as well as sales of both individual songs and subscriptions. In fact, each play results in a royalty payment to the artist, which is great.

The basic assumption being made here is that streaming is fleeting, non-permanent. Simply put, that assumption is wrong. Tools like our own Audio Hijack Pro, as well as many others, enable you to record any audio. This ability has “substantial non-infringing uses”, commonly known as the Betamax Doctrine¹. As part of this, it’s possible to make a permanent copy of streamed audio.

This incorrect assumption has been around for years, but it was largely harmless. Such streaming was scattered, low-quality, and in the case of online music radio streams, random. Last.fm, however, has made an enormous catalog of music from the major labels available for streaming on-demand, and it sounds pretty good to my ears. Suddenly, this erroneous assumption could well impact the bottom line. If you don’t need to stream music, they don’t get to count plays or show ads, and artists don’t get paid.

Ideally, users will do what’s right, and purchase proper access to the music to which they wish to listen. My fear, however, is that potentially infringing uses of recording tools will become widespread. In that scenario, it’s possible that instead of adjusting their model, the entertainment industry will just come after developers of recording tools. Should the Betamax Doctrine not hold up, these tools could disappear. That would be bad for us, of course, but it would also hurt the thousands of users using them legitimately.

An even more dire scenario would involve the music studios going after Apple and Microsoft to implement a required “secure audio path” in the OS. Vista has this in the form of the Protected Media Path, but it’s currently in limited use. Things could get much, much more restrictive, and that’s bad for everyone involved. Even the entertainment industry would likely suffer. They once opposed the VCR, with then-head of the MPAA Jack Valenti famously comparing the VCR to the Boston Strangler. Today, home video accounts for tens of billions in revenue.

This is an exciting development in access to music. Thirty second previews just aren’t enough, and terrestrial radio doesn’t provide access to new music as it once did. I hope this will work well for Last.fm, artists, and consumers alike. As part of that, I’ll urge you to support the artists you love. If you listen to their music, pay for it, whether through albums or subscriptions. Your support is needed to enable them to keep creating the things you love (much like software developers). The iPod wrappers have long said it best – “Don’t steal music”.

Footnotes:
1. The Betamax Doctrine has been important for 20+ years of innovation in technology. It was established by the Supreme Court in 1984², and it basically says that if a tool can be used for obvious legitimate purposes, it’s potential illegal uses do not make the device illegal. In other words, beating someone up with a baseball bat is still assault, but we don’t need to shut down the Louisville Slugger factory. ↩

2. From Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (link). This is the same case that legitimized timeshifting, paving the way for things like TiVo and our own Radioshift. It’s amazing the enormous effect this one case has had on both Rogue Amoeba and technology in general. ↩