MSN Music has taken a very interesting tack to compete with commercial radio stations ~ they've ripped off their playlists verbatim, and are streaming the same song selections over the internet without commercials and without the DJs. Can Microsoft be sued by a radio station for copying a playlist of songs ~ recordings which the radio station doesn't actually own?

Microsoft creates static over new radio feature

Benny Evangelista, Chronicle Staff Writer
Monday, September 6, 2004

Software giant Microsoft took center stage last week when it began selling songs online, but another feature of its new MSN Music service is quietly raising eyebrows in the radio industry.

Microsoft is using playlists from more than 900 local radio stations around the country to create its own soundalike Internet stations -- stripped of local DJ chatter, traffic, weather and commercials.

The new MSN Radio offers Internet stations playing most of the same songs heard on over-the-air outlets like Berkeley's KBLX, "The Quiet Storm''; New York's WNEW, "The Mix 102.7''; or Chicago's WLUP, "The Loop.''

"It results in a more pleasant experience because you don't have the ads or the DJs,'' Rob Bennett, senior director for MSN Entertainment, said during a press briefing last week.

But radio industry experts said creating stations that sound like local radio outlets presents a possible trademark infringement problem, much like selling a generic soft drink that's "just like Coca-Cola'' with the same ingredients.

"I'm surprised they would co-opt the brand names of every radio station in America without permission,'' said Bill Conway, program director and station manager for San Francisco's KOIT-FM. Conway was surprised when he learned from a reporter that Microsoft was using his station's call letters and well-known slogan, "Lite Rock, Less Talk,'' to promote a mimicked version of KOIT.

Tom Taylor, editor of the industry trade magazine Inside Radio, said Microsoft's attempt to compete with local stations "will be threatening'' to some radio companies.

"Radio stations will see this as piggybacking on their hard-earned brand awareness and potentially cannibalizing their success,'' Taylor said.

On Thursday, Microsoft released a public preview of MSN Music, which can be found at beta.music.msn.com, and as a part of the new Windows Media Player 10 software. Most of the media attention was focused on the service's catalog of downloadable songs, which competes with the market-leading iTunes Music Store from Cupertino's Apple Computer Inc.

But what was largely overlooked was MSN Radio, which, like iTunes, provides a wide selection of Internet radio streams with different music genres. The key difference, however, is a section called "Local Stations,'' which provides Internet radio programmed by computer to duplicate the songs found on local stations in major markets.

Microsoft buys its lists of radio songs, called playlists, from Nielsen Broadcast Data Systems, a division of the Nielsen ratings service, which monitors more than 1,200 radio stations in the United States, Canada and Puerto Rico. It is one of two services used by station managers and program directors to track what's being played by competitors and in other markets.

Microsoft, however, feeds the playlists into computers, which automatically generate playlists to create the soundalike MSN station. The song lists are changed to adhere to rules that are different for Web radio casts and to exclude songs that Microsoft does not have rights to distribute on the Internet, Bennett said.

MSN Radio promotes these online channels as being "like'' a favorite local station, "but with fewer ads, no DJ chatter and less repetition.'' The "S.F.-Oakland-San Jose'' section offered 11 stations, including ones designed to sound like KYLD Wild 94.9, Alice 97.3 and K101's Star 101.3.

The free version intersperses brief Microsoft audio commercials for MSN's subscription service, which for $5 per month provides the same Internet radio stations with no advertising and at a higher-quality sound.

When asked about the potential trademark problems, Microsoft said in a statement released through a spokesman that "the use of station names is applied only to indicate the top artists on a station, and we believe it's simply a factual statement about the radio station, similar to many other public radio charts on the Web. If any radio station has concerns about this usage, they should contact Microsoft directly."

John Allers, program director at San Jose's KCNL-FM, known as Channel 104. 9, had two messages for Microsoft upon learning of the KCNL clone.

"I appreciate them calling attention to us to those who may not have discovered us yet,'' Allers said. But he added that "if you're trying to take away our listeners,'' the programming that makes a station's personality and connection to listeners can't be duplicated by a computer.

Robert Unmacht, a Nashville radio industry consultant, said Microsoft's attempt to compete with local radio stations is just the start of a new digital entertainment battleground.

While MSN Radio now requires a computer tied to the Internet, there is movement to make high-speed wireless Internet connections widely available.

"I think we're headed toward broadband radio,'' said Unmacht, a founder of In3 Partners of Nashville. Microsoft, he added, "is five or 10 years ahead of where they need to be, which is smart because broadcasters are thinking just 13 weeks ahead.''

<FLAME ON!>

I generally don't listen to radio during the morning commute because the airwaves are inundated with morning shows.

I don't mind hearing a DJ, especially one who knows little tidbits of history behind some of the songs that had just played. I cannot, however, tolerate the majority of the morning show hosts. Very few of them seem qualified to entertain an audience for several hours.

I think that the above radio stations that feel threatened by MSN's tactics might be able to compete by scaling back the blah-blah time they allot for their morning show hosts.

</FLAME OFF!>

Jim

Professionalism is dead. They are announcers. My first boss would not stand to hear his announcers called DJs and I would never cop to being one (as opposed to being an announcer) but I digress.

Good announcers you do listen to. It is a talent that has been all but micromanaged away to the point where you are only allowed to have a personality (and therefore be a personality) if you are on a morning show. But you can only be on a morning show if you have a personality. (Repeat, ad infinitum.)

As to your actual question, radio stations publish their playlists and therefore make them public property, so yes, Microsoft can do this without impunity. But the playlist isn't the key to a radio station's sound. It's the song rotation and the total library. The playlist tells you what new music they're playing. It doesn't tell you the brand artists of the station (people you hear ad nauseum) and rarely tells you which new music is in a tight rotation versus a lunar rotation (as in once in a blue moon.)

So they haven't really stolen the sound.

(For the record, many moons ago I worked for several different radio stations as a continuity director, producer, and air talent [a k a DJ.])

I agree that they haven't "stolen the sound", but isn't advertising it as sounding like WXXX (or whatever the station's call letters are) veering dangerously close to some sort of copyright infringement?

I dunno, every so often there are DJs who actually are fun to listen to. I loved listening to Kerry and Bill on X96 when I lived in Utah. The morning team in West Palm Beach on the grunge station were also very entertaining to listen to. Unfortunately, they were fired and replaced by Howard Stern's ego-fest.

Michael

Here in the UK - one of the more popular stations has no DJs (still had ads) - It's just pure music.

I hate commerical radio - each station seems to have the same "wacky" DJ pair on their breakfast show - I'll stick to the BBC channels thanks.

It's never been the same since Kenny Everett died. Now there was a DJ worth listening to.

Amen.

I need a c.d. player in my car. I can't stand morning show hosts, either. Too much sophomoric humor, political rhetoric or just plain inane chatter.

When I drive, I just want to hear music. This is especially true in the morning. If I hear other people talking when I'm not fully awake, then my brain will drift off into a fog!

I assume that morning shows are popular, since virtually every radio station seems to have one. I truly don't understand the appeal, though.

Play Elvis CDs. They will make you happy.

heh - too right. Now it's "wow I was at a party last night and got really drunk and then said the word wee. I'm crazy me! oh look it's crazy dave and the rest of the arselickers employed by the radio station to laugh at my jokes."

Yeah - so fucking what!

One of the best is Jackson Armstrong. For years he was in Buffalo at what was then WKBW, which is where I discovered him when I was in high school (thank God for 50,000 watt signals). Fast talking, funny and very entertaining. These days, he is doing morning drive at WMQX-FM in North Carolina, ( http://www.oldies93.com ) and he is also doing evenings back at KB, which is now WWKB 1520 AM from 7 to 10 (when Bisons baseball isn't on). If you live on the east coast, chances are that at night, you can get the WWKB signal.

I've been lucky with my morning radio. As a kid I listened to Skip Bishop on WPFM ("The Great 108" and now the late great since they were bought and format changed) in Panama City.

When I moved to Gainesville the local top 40 station (http://www.kiss1053.com/index.shtml) had a relatively new program director/morning show guy, Jerry Banta. Jerry has been the morning guy pretty much the entire time. He's had an assortment of partners.

As a teenager, KISS 105 also had some great night time DJ's. I especially enjoyed it when they would crossover between shifts and hang out with one another. I used to call in so often that one of the guys new me by my voice.

I don't listen to commercial radio as much for the songs. The top 40 stations are now top 20 at most. About five years ago I counted the number of times KISS 105 played Just the Two of Us by Will Smith in one work day. It was four or five times! That's just too much repitition for me.

I haven't jumped onto the Internet or satellite radio bandwagon... Yet. I know that I'd enjoy it, but my attention is focussed on other things these days. And I have enough CD's of my own to listen to my favorite oldies whenever I want.

Interesting idea, except for one minor flaw: It's not just the DJ's
who suck, it's the music too! Seriously, I can't listen to music
radio anymore, since for every one great song ya gotta sit
through 10 bad ones. For me, it's mostly talk radio.
Howard Stern on the way to work & Tom Leykis (who,
coincidentally enough, was talking about this very
topic yesterday) on the way home. When I actually
need to listen to music I just put in a tape I made.
At least then I know I'll like every song.

I hate morning chat shows...i want music to wake me up...every morning show host reminds me of the two dufuses on the SIMPSONS who host KBBL...remember the episode where they are replaced by a computer who spits out witticisms...like "what are those clowns in washington up to now?"...and the host then goes" how does the computer stay up to date on current events like that?