Michael Robertson Bucks the Music Industry Again

Michael Robertson is a longtime provocateur of the music business. A decade ago, the music labels successfully sued his landmark startup, Mp3.com, over a feature that gave users a digital copy of any song they could prove they owned on CD. In 2007, Robertson walked into another nest of litigation with Mp3Tunes.com, which allows consumers to upload their songs into cloud-based digital music lockers and then stream their tracks to any smartphone or computer. The recording labels believed he needed a license to do that, and a judge's decision in the resulting lawsuit, brought by EMI Music, is expected soon.

Now the San Diego entrepreneur is lobbing another sonic grenade. Robertson is taking the wraps off his newest startup, DAR.fm—short for digital audio recorder—that he planned to launch on Feb. 23. It'll be a centralized Web-based TiVo (TIVO) for radio. Users can go to DAR.fm to search through the programming schedules of about 600 music and talk-radio stations around the country and schedule the site to record up to four hours of any broadcast. The recordings, complete with ads and DJ chatter that users can fast-forward through, are then deposited into a user's password-protected account that can be accessed from any PC, smartphone, or Internet-connected radio. "Radio is dying because it's inconvenient and limiting," says Robertson. "The content is not interactive, and it's available on only a limited number of devices."

The free service—Robertson says he'll eventually try to sell ads—works by recording audio right off a radio station's own website. About half the 10,000 stations in the U.S. stream their live broadcasts on their home pages. (DAR.fm will only record feeds that do not use encrypted media-streaming formats such as Microsoft's (MSFT) Silverlight.) When instructed by a user, DAR.fm can, for example, visit the site of KOH in Reno to record Sean Hannity's daily talk show, navigate to an ESPN Radio affiliate such as KTIK in Boise to get Jim Rome's three-hour drive-time sports rants, or grab several hours of alternative rock from WPBZ in West Palm Beach, Fla., or KITS in San Francisco. The feature that may be most appealing to consumers and irksome to music executives: DAR.fm identifies individual songs in a broadcast and allows users to download them to mobile phones or iTunes music libraries. (The audio quality is much lower than music bought on iTunes.)

Recording live radio isn't exactly new. Many listeners of a certain age once made a practice of recording Casey Kasem's American Top 40 on cassettes (though few will now confess this). And today, of course, stations often make their programs freely available as podcasts. The music industry, however, does not generally favor technologies that allow consumers to pick apart a live broadcast and funnel individual songs into their personal music collection. An attorney familiar with the legal strategy of the Recording Industry Association of America points to a 2006 dispute between the labels and satellite operator XM Radio. At issue was a device that stored and played back live broadcasts; XM backed down and stopped selling the device.

DAR.fm is on solid legal ground, says Robertson. He cites a 2008 lawsuit, Cartoon Network v. Cablevision, in which a New York federal court ruled that the cable operator could make copies of television shows and store them on its own servers instead of on a device in a customer's home. Joshua S. Wattles, an adjunct professor of copyright law at Southwestern Law School in Los Angeles, agrees that DAR.fm, though provocative, is probably safe as far as the law is concerned. Wattles, who has represented Robertson on a previous matter but does not currently work with him, also notes that the entrepreneur has kept many talented copyright attorneys gainfully employed over the years. "He is a discombobulator," he says. "He does things that are upsetting, which are radical changes."

Robertson, who says he has gotten positive feedback from several large radio companies, acknowledges that the music industry might fight him once again. "There is no new technology that these guys don't look at as the end of the world," he says.

The bottom line: Robertson, past target of recording label lawsuits, says new venture DAR.fm is on solid legal footing to record live radio.

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