• by Wendy Davis  @wendyndavis, October 6, 2011

Entrepreneur Michael Robertson, who recently won a significant victory against the record industry over his cyberlocker company MP3tunes.com, recently launched an equally controversial service that allows people to time-shift radio programs.

Robertson's new service, DAR.fm (standing for digital audio recorder), allows people to store and download radio shows in order to listen to them at their convenience. DAR.fm offers a free service that allows users to store 50 hours worth of programs, and a $40-a-year service that allows users to store up to 500 hours of programs.

"Similar to how a DVR (digital video recorder) works with television DAR is a DVR for your radio," the company says on its site.

But not everyone is a fan.

Univision recently sent Robertson a letter demanding that he remove its radio stations from DAR.fm. "We disagree with your characterization that your Web site allows users to record audio content in the same way that a DVR allows recording of audiovisual content for purposes of time-shifting," the letter states.

Univision also complains that the service, "open(s) the door for users to engage in copyright infringement, since unlimited copies can be made from the downloaded MP3 files and then be distributed to others."

Robertson, however, says the law is on his side. He points to a federal appellate court's ruling in 2008 in a lawsuit involving Cablevision's remote DVR service. In that case, film and TV producers argued that Cablevision's remote DVR infringed their copyright.

But the 2nd Circuit Court of Appeals rejected that argument, ruling that the service was legal because users were the ones who initiated the recording. "By selling access to a system that automatically produces copies on command, Cablevision ... resembles a store proprietor who charges customers to use a photocopier on his premises," the court wrote.

(Consumers generally have the right to time-shift TV shows under the fair use doctrine, but the court didn't address that question in this case).

Robertson also says the service does not enable users to infringe on copyright "any more than when Amazon or iTunes allows people to download songs or Instapaper or ReaditLater let people download articles."

New York Law School professor James Grimmelmann says the legal issues remain unsettled, but the ruling in Cablevision weighs against Univision. "The Cablevision case certainly helps DAR.fm a lot," he says.

He adds that the decision in that case supports the idea that technology companies don't themselves infringe copyright simply by providing the technology that allows users to make recordings.

Still, much could depend on where any lawsuit is litigated. Courts that are not within the 2nd Circuit (which covers New York, Connecticut and Vermont) could come to different conclusions than the judges in the Cablevision lawsuit.

Robertson separately scored a partial victory in a copyright lawsuit brought by EMI, which argued that the digital locker company MP3tunes.com should be held liable infringement by users.

In that case, U.S. District Court Judge William Pauley III in New York ruled that MP3tunes was entitled to rely on the Digital Millennium Copyright Act's safe harbor provisions when users upload pirated music. Those safe harbors protect companies from liability for users' uploads, provided the companies remove pirated material upon request.