(Photo courtesy of The Hype Machine)

I was first introduced to The Hype Machine by a music collecting, risk averse friend who assured me that this was the only legal way to get free music. Unlike traditional P2P services, in which individual computers connect to each other directly in order to swap files, Hype Machine is a blog aggregator. Basically, Hype Machine’s software scours the net for music blogs, especially those hosting MP3’s. Users can then search Hype Machine for particular artists or songs, or they can use the site to check out what’s currently popular. The site maintains a compound RSS feed of blogged tracks, so visitors can listen to songs streaming on the website, visit the original posts on the various music blogs that Hype Machine aggregates (where the songs can often be downloaded directly from the blogs), or travel to Amazon or ITunes where they can buy the songs they’re listening to.

In effect, the entire internet becomes a kind of P2P network. And unlike traditional P2P software, record companies can’t easily track who’s listening to what. Napster, Kazaa and Pirates Bay were for chumps, my friend told me – this was the future of music online.

Of course, things turned out to be a bit more complicated than that. Hype Machine might be legal, but then again it might not. It’s one of many descendants of the original P2P services that operate in a legal gray area. Its creators have learned from the mistakes of Grokster, Kazaa, and others, and they take great pains to emphasize that the site is not intended to encourage infringement. Users are constantly told to legally purchase the songs they listen to, and the site’s legal disclaimer insists that its creators “can’t be responsible for what people post on their blogs.” The site’s creators are also quick to point out that they make most of their revenue from users who follow links on the site to ITunes or Amazon to purchase music (they receive 5% of all such sales).

But the site does not only point users towards blogs. In order for Hype Machine to make the songs available on the site, it mirrors the MP3’s passing through, makes copies, and then puts them online at URL’s of its own. This is the only reasonable way to allow large numbers of users to listen to the songs without overwhelming the hosting blog or running up a massive ISP bill for them. To minimize legal trouble, Hype Machine hides the files at URL’s that are never made public. This way users cannot simply download the MP3’s to their computers via Hype Machine’s servers.

Lately, though, creative programmers have been writing scripts that allow users to find the URL’s where tracks are hidden and download them to their own computers. One blogger created such a script and posted it, only to remove it the next day at the request of Hype Machine’s founder, who feared legal repercussions. Other scripts have since been written, and efforts by Hype Machine to block such programs have had limited success.

It seems unlikely that the ability to download tracks, as opposed to merely stream them, would significantly impact the legal status of the site. But a good faith effort to prevent such downloading might show an absence of infringing intent (something that is vital in the aftermath of the Supreme Court’s decision in the Grokster case). And it might prevent lawsuits by convincing copyright holders that the website is merely providing free advertisement, rather than cutting them out of a market.

Still, there are significant reasons to worry about Hype Machine’s future. Presumably, Hype Machine hopes for safe harbor under Section 512 of the DMCA. In their copyright notice they inform readers that copyright holders may follow the procedures outlined in Section 512 and notify the site’s creators, who will remove offending links. But critics may argue that the site actively seeks out music (much of it copyrighted), mirrors it, and stores it on its server, rather than merely acting as a gatekeeper and allowing users to upload content themselves.

Certainly, if Viacom’s pending action against YouTube is successful, there is no reason to believe that Hype Machine would fare better. Like YouTube, Hype Machine responds to chilling notices but does not employ software to block copyrighted material. Its popularity as a site is due in no small part to the presence of infringing material, and it does not seem to have a policy of terminating infringing users.

For now, Hype Machine provides a valuable service to thousands of users, allowing them to discover new music, read about artists they enjoy, and even download files that they would otherwise have to pay for. So use it while you can – it may not be around forever.

In the meantime, you may want to check out this video: